Tom's point about the use of myths to drive the tort reform agenda is a powerful one. But this battle is about more than myths about torts; it is also a battle about myths about constitutional law.
In most of the tort suits that trigger preemption defenses, there is no plaintiff whose story is susceptible to ridicule. Tort cases are almost invariably brought by people who jurors, once they hear the plaintiffs' stories, sympathize with --- which is why defendants are so leery of letting tort cases get to juries in the first place.
That is why preemption isn't just the defense du jour --- a fad that will soon pass. It is a door-closing device that shuts the courthouse door to injured parties, ends the case before plaintiffs and their lawyers can engage in discovery, and spares the defendant both the costs of defending the case and the possibility that the plaintiffs and their lawyers will get access to all of those emails and internal memorandum that, in many cases, prove the defendants' culpability.
The Administration's carefully planned and well-orchestrated effort to use regulatory preemption as a way of conferring broad immunity from tort litigation is undoubtedly a response to the Administration's calculation that Congress was unwilling to engage in broad-scale tort "reform" (that is, a federalization and roll back of state tort law).
So the questions posed by this effort are two: (1) Will the courts accept preemption decisions made by regulatory agencies, generally in ways that do not ordinarily command deference; and (2) if so, what can the States, and an incoming Congress, do about this?
In my view, we'll get an answer to the first question in Wyeth v. Levine, which is the first of a series of preemption cases to raise the implied preemption issue. Reigel v. Medtronic, decided last Term, was an express preemption case, and the Court there refused to grapple with the FDA's confusing and inconsistent position on the preemptive scope of the statute at issue in Reigel, the Medical Device Amendments to the Federal Food Drug and Cosmetic Act.
More interesting is the longer term question of what could Congress and the states do were the Court to accept implied preemption arguments in cases like Wyeth? One myth that the defense bar has advanced is that Congress would be powerless to overturn a Supreme Court ruling. A prominent defense lawyer is quoted in this week's Law Week as suggesting that because of the constitutional underpinnings of the implied preemption doctrine, a judicial determination that state law threatens the fulfillment of federal objectives would be binding on Congress. The upshot of the argument is that, in his view, Congress would be powerless to overturn an implied preemption ruling.
I think that the argument is nothing more than mythology. To be sure, the initial premise is right: Implied preemption rulings are grounded in the Supremacy Clause --- state law that impedes federal objectives is displaced by virtue of the Supremacy Clause (provided, of course, that Congress had the power to set the federal objectives in the first place).
But the conclusion advocated by the defense bar just doesn't follow. Congress, not the courts, identifies the objectives to be served by federal legislation. And if Congress concludes that federal objectives are not ill-served by whatever tension the courts identify between federal and state dictates, then that determination is binding on the courts. That is how our constitutional scheme functions: Congress, not the judiciary, gets to set and fine tune federal objectives. An implied preemption ruling by the courts cannot limit Congress' authority in that way.
This point takes on special force in the federalism context. Congress is unique in our constitutional scheme in that it is the only branch of the federal government especially responsive to state prerogatives. In contrast, federal courts are constituted to serve federal interests. Giving the courts rather than Congress the final say in matters of allocation of power between the federal and state governments would run counter to the fabric of our constitutional scheme. But this question too has been set into play by the ongoing preemption debate.