While the Court went to great lengths in Bruesewitz and Williamson to explain its opinions on narrow grounds, the lack of any clear bright line preemption rule in those cases leads inevitably to the conclusion that success in preemption litigation will turn in the first instance on which party succeeds in defining the narrative through which a court will view its analysis. In Bruesewitz, for example, the Court's detailed grammatical dissection of the NCVIA's express preemption provision could not hide the fact that both sides' proposed statutory interpretations rendered parts of the statutory language superfluous. See Bruesewitz, 2011 WL 588789 at *7. The majority opinion may have had the better of this interpretive argument, but it is difficult to credit either side's view that Congress clearly expressed its intent through the at-best inartfully-worded express preemption provision. It is likewise difficult to believe that the important public health goals specifically furthered by preemption of vaccine design defect claims did not guide the Court in reaching the proper statutory interpretation conclusion. Even more so, in Williamson, the Court's determination that the implied preemption decision turns on the "significance" of the federal regulatory decision at issue sets the stage in future preemption cases for battles over whether the policies underlying particular regulatory decisions are sufficiently (or insufficiently) significant.
Lasker on preemption
- Obamacare Debate Complete: The participant with the most compelling argument was...
- Sackett v. EPA
- Coming next week: featured discussion on PPACA
- A small victory against the EPA
- New Podcasts: Making sense of the court order in Kiobel
- Kiobel debate complete
- New Featured Discussion: Kiobel and corporate liability under the Alien Tort Statute
- Update on California foreign policy efforts
- Supreme Court hears argument on Stolen Valor Act
- Greg Conko: Can brand makers be sued for generic drug injuries?
- Romney and self-deporting
- Compucredit v. Greenwood
- Wherein George Soros wastes his money
- The myth of the pro-business Supreme Court (continued)
- The expense of the death penalty