Miscellaneous

Preempt-O-Rama

By Anne Skove, Esq.

Q: Is there any current SCOTUS Justice not in favor of federal laws preempting laws of the states?

A: Not really!

Earlier, we noted Medtronic's huge win. (Which, come to think of it, makes that crazy Britney document a wee bit more sensible, in the way that two people saying something utterly ridiculous sounds better than just one...)

But lately we've seen a host of preemption opinions from on high. Can states control commercial delivery of tobacco? Nope (J. Breyer, plus everyone else, in Rowe v. New Hampshire Motor Transp. Assn.).

Can parties who agree to arbitrate be referred to initial review by an administrative agency? Surely not! (So says J. Ginsburg, and all but J. Thomas, in Preston v. Ferrer.)

What about those medical devices* approved by the FDA? Nope! Lookit the "F" in "FDA:" it stands for feds. (Thus saith J. Scalia, with all but J. Ginsburg joining in the chorus of the aforementioned Riegel v. Medtronic.)

See State Laws Preempted in Three Areas, from the industrious Lyle Denniston, SCOTUSblog (February 20, 2008).

For a nice rundown of Medtronic and background articles, see High Court Expands Federal Preemption in Medical Cases, OMB Watch (March 4, 2008).

To delve into the "tort bar plot," see Medical Double Jeopardy, Wall Street Journal (March 1, 2008).

* We wonder whether exceptions such as 43.23(g) of the Texas Penal Code to bans on "obscene devices" (aka sex toys) for health reasons magically turn them into "medical devices?" Sure, the FDA only regulates one such device to date, but there are calls for more regulation. If so...Mississippi and Alabama may soon be saying Helloooo Kitty!

Full post as published by court-o-rama.org on March 05, 2008 (boomark / email).