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A troubling trend in preemption rulings.

Article Excerpt
Other cases may receive more headlines, but for trial lawyers, the Supreme Court's most important decisions this year will focus on preemption. And the Court is already displaying a troubling trend on this issue.

On February 20, the Court handed down three decisions that address the question of when federal law trumps state law. All three found that the state law claims involved were preempted. (1) Still pending is Wyeth v. Levine, which considers whether a patient who was injured by off-label use of a drug can recover from the manufacturer, even though the FDA approved the label. (2)

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One would expect that a conservative Court, committed to protecting states' rights, would narrow the scope of federal preemption. After all, a good way to empower state governments is to restrict the federal government's reach. Restricting preemption gives state governments more autonomy.

But there is every indication that the Roberts Court, although unquestionably conservative, will interpret preemption doctrines broadly when businesses challenge state and local laws. The recent decisions--especially Riegel v. Medtronic, Inc.--suggest a Court very willing to let federal law trump state law when business interests are at stake.

The Rehnquist era

A tendency to find in favor of businesses pushing the preemption argument began with the Rehnquist Court. For example, in the 2000 case Geier v. American Honda Motor Co., (3) the Court found that federal law preempted a state products liability lawsuit over an unsafe vehicle, despite a statutory provision that expressly provided that "compliance with" a federal safety standard did "not exempt any person from any liability under the common law." (4) In Lorillard Tobacco Co. v. Reilly, the Court found that federal law preempted a state law regulating the location of cigarette advertisements (the regulation was part of the state's campaign to reduce underage smoking). (5) In Crosby v. National Foreign Trade Council, the Court invalidated a Massachusetts law that prohibited the state from purchasing goods and services from companies that did business with...

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