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All Volumes | Volume 84 | Issue 5

When Worlds Collide: The Supreme Court Confronts Federal Agencies with Federalism in Wyeth v. Levine

Elizabeth J. Cabraser | Symposium

On March 4, 2009, in Wyeth v. Levine, the United States Supreme Court rejected the viability of a preamble to a 2006 Food and Drug Administration (FDA) prescription drug-labeling regulation that purported to preempt state tort law, concluding that it “does not merit deference.” The Court upheld the verdict of a Vermont jury in favor of plaintiff Diana Levine against the manufacture of the prescription drug, on state tort law failure-to-warn theories, for an injury she had suffered nine years before, in April 2000. The injury resulted in the amputation of her right forearm and ended her career as a professional musician. Had [...]

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The Defense of Preemption: A View from the Trenches

Alan Untereiner | Symposium

Most lawyers who have any familiarity with the law of federal preemption, and in particular the United States Supreme Court’s cases involving the preemption of state tort requirements, would freely admit that the law is a muddle. Beginning with the Court’s fractured 1992 decision in Cipollone v. Liggett Group, Inc., which was argued twice before it was decided, the Court has issued a series of decisions, some of them fractured and confusing, that have alternatively cheered and flummoxed the plaintiffs’ bar as well as product manufacturers, transportation companies, and other businesses that regularly rely on the preemption defense. Unfortunately, these cases–which [...]

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Judicial Deference and Regulatory Preemption by Federal Agencies

William Funk | Symposium

This Article will attempt to describe the state of the law as it currently exists relating to preemption associated with agency regulations, especially in light of three preemption decisions by the Supreme Court in its October 2008 term—Wyeth v. Levine, Altria Group, Inc. v. Good, and Cuomo v. Clearing House Ass’n. The Article will then suggest how courts should assess claims of preemption of state law associated with federal agency regulations.

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Preemption of State Common Law by Federal Agency Action: Striking the Appropriate Balance that Protects Public Safety

Victor E. Schwartz and Cary Silverman | Symposium

After a brief review of the basics of preemption, this Article considers the public policy underlying preemption of common law claims by federal agency regulations. Next, the Article examines the recent development of preemption law, following two major United States Supreme Court decisions on preemption and President Barack Obama’s instructions on preemption to heads of federal regulatory agencies. Finally, the Article notes that when the tension between federal regulations and state tort claims does not rise to the level of preemption, state law provides courts with discretion to consider the manufacturer’s compliance as satisfying the common law standard of reasonable [...]

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A Separation-of-Powers Defense of the “Presumption Against Preemption”

Robert S. Peck | Symposium

In Wyeth v. Levine, the United States Supreme Court revitalized the sometimes dormant “presumption against pre-emption” by declaring it one of two cornerstones of preemption jurisprudence. Under the presumption, the analysis of a claim that federal law preempts state law starts with “‘the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”’ Although the Court previously had instructed lower courts that the preemption analysis always begins with a “basic presumption against pre-emption,” the Court itself often has honored that mandate in the breach–when it [...]

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Quasi-Preemption: Nervous Breakdown in Our Constitutional System

Geoffrey C. Hazard, Jr. | Symposium
A half century ago, in The Relations Between State and Federal Law, Professor Henry Hart of Harvard defined the public need for harmonizing the legal dictates issuing from the two levels of sovereignty established in the United States Constitution: The law which governs daily living in the United States is a single system of law: it speaks in relation to any particular question with only one ultimately authoritative voice, however difficult it may be on occasion to discern in advance which of two or more conflicting voices really carries authority. In the long run and in the large, this must [...]
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Introduction to the Symposium: Federal Preemption of State Tort Law: A Snapshot of the Ongoing Debate

Edward F. Sherman | Symposium

Woodrow Wilson observed in 1908 that “[t]he question of the relation of the States to the federal government is the cardinal question of our constitutional system.” “It cannot . . . be settled,” he said, “by . . . one generation, because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question.” The relation of the states to the federal government has been a dominant constitutional issue throughout our history covering a wide range of issues–such as enumerated and implied powers, scope of the commerce clause, [...]

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