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.
Morrison (pictured below) approved of the Wyeth ruling, but said it's time for a "fresh start" on the entire issue, with Congress working harder to make its pre-emption preferences clear in legislation. New York University School of Law professor Catherine Sharkey used the words "muddle" and "chaos" to describe the current state of pre-emption doctrine.
Michael Greve of the American Enterprise Institute, co-author of a book on pre-emption, blamed conservative justices Antonin Scalia and Clarence Thomas in part for making a muddle of the doctrine. He said, "There's much less bloc-voting" among conservatives and liberals on the Court in pre-emption cases than there is in civil rights cases.
Former Food and Drug Administration chief counsel Daniel Troy, now vice president and general counsel at GlaxoSmithKline, said he too is looking for more clarity on the issue, and hoped that even in the wake of the
Wyeth ruling, "there is still some room for pre-emption" -- or some alternative to "the lottery called the tort system."
As an aside, Troy (pictured at right) said that one reason for the delay in supplying swine flu vaccine to the public this year has been manufacturers' fear about litigation over thimerasol, a preservative he said is needed to safeguard multi-dose vials of the vaccine. Some people still link thimerasol, which contains mercury, to autism in children, Troy said, despite scientific studies and court rulings to the contrary. If someone who receives the swine flu vaccine later is later diagnosed with autism, Troy asked rhetorically, "should we be able to be sued?"
(Photos by Diego Radzinschi.)
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