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Topic: Federalism and Preemption

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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