Former Naderite Alan Morrison said today that when he speaks before the conservative Federalist Society, he usually comes away invigorated by a good fight he's gotten into. So he was disappointed to report that he agreed with a lot of what he was hearing at a panel discussion on the state of federal pre-emption doctrine. Like other speakers, Morrison, now associate dean at George Washington University Law School, described pre-emption as "a mess."
Businesses have generally embraced federal pre-emption -- which gives federal agencies the upper hand over state regulation -- because means can defend lawsuits in one federal forum, rather than 50 unruly state systems. The conservative Supreme Court, caught in crosscurrents like federalism, has sometimes but not consistently gone along with pre-emption. Last term it handed a big pre-emption defeat to business when it ruled 6-3 in Wyeth v. Levine that state litigation over drug labeling is not pre-empted by federal law.