Federal Preemption and the Supreme Court

Administrative Law Practice Group and American Enterprise Institute

The federal preemption  of state tort law is an issue in several cases on the Supreme Court's docket, including February 25 oral arguments in Warner-Lambert v. Kent. On the same day, petitioners' briefs are due in Wyeth v. Levine, in which the federal government and pharmaceutical manufacturers argue that Food and Drug Administration (FDA) approval of prescription drug labeling preempts state "failure-to-warn" litigation, and in Altria v. Good, in which tobacco manufacturers argue that Federal Trade Commission labeling requirements preempt the multibillion-dollar consumer fraud litigation over light cigarettes. Earlier in the term, in Riegel v. Medtronic, the Court heard arguments about whether federal regulations preempt product liability claims over preapproved medical devices.

How will the Supreme Court resolve these complicated questions? What is the appropriate relationship between federal regulation and state tort law? What are the pros and cons of preemption, and what impact will these cases have on product liability litigation and product safety?

Panelists include:

  • Dr. Michael S. Greve, American Enterprise Institute
  • Prof. Catherine Sharkey, New York University School of Law
  • Hon. Daniel Troy, Sidley Austin
  • Mr. Brian Wolfman, Public Citizen Litigation Group
  • Moderator: Mr. Theodore H. Frank, American Enterprise Institute