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October 3, 2008

Pre-emption Tops Justices' Fall Docket
Roberts' Impact on The High Court Is Still Being Debated

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The increasingly high-profile debate over the extent to which federal law trumps state law takes center stage Monday when the U.S. Supreme Court opens its 2008 term.

After hearing six cases on federal pre-emption last term, the court already has another two on its docket, including one that is the first case to be argued this fall.

It concerns whether federal law pre-empts state law on the issue of how tobacco companies can market low tar cigarettes. Altria v. Good, 07-562.

Revisiting Last Term

Last term, the court found in favor of pre-emption in a series of cases, including a drug device case in which the court ruled in an 8-1 decision that federal law pre-empts state law when it comes to regulating certain types of devices. Riegel v. Medtronic, 128 S.Ct. 999 (2008).

The justices are hearing the second, and possibly even more important, pre-emption case in November.

That is a case about whether plaintiffs can file suit against drug companies in state court over pharmaceutical products if the Federal Drug Administration has already approved the drug. Wyeth v. Levine, 06-1249.

Devastating for Trial Lawyers?

If the pharmaceutical companies win in Levine, it could be devastating for trial lawyers, who could be denied the opportunity to file drug liability cases in state court, depending on how broad the ruling is.

Pre-emption is a suitable note on which to open the 2008-2009 term. In the absence of any sure-fire blockbuster cases this fall, it is set to be one of the dominant issues.

Levine and Altria "are really the two very important cases the court will decide in the business area this year," according to Paul Clement, who recently stepped down as solicitor general.

The business community - and the Bush administration - is keen to push pre-emption as a way to prevent state court juries from awarding multi-million dollar verdicts to plaintiffs.

Georgetown Law Center's David Vladeck, who previously headed consumer advocacy group Public Citizen's litigation team, describes the expanded role of pre-emption as the "get-out-of-jail-free defense" for corporate defendants.

Furthermore, as Erwin Chemerinsky, dean of the new law school at University of California at Irvine, points out, the court under Chief Justice John G. Roberts Jr. has "found pre-emption in every cases where there's been a business challenge to a state or local regulation."

But, as court-watchers note, there is a significant difference between Altria and Levine that could have a major impact on how they come out. Altria, rests on whether Congress explicitly stated that federal law pre-empted state law.

This "express pre-emption" argument, based on finding specific statutory language that makes it clear Congress intended for state law to be pre-empted, was successful in Riegel.

But in Wyeth, the issue is whether pre-emption occurs through implication, not express statutory authorization, in what as known as "implied pre-emption".

Gibson Dunn & Crutcher partner Theodore B. Olson is arguing Altria for the cigarette manufacturer in what will be his 50th appearance before the court, but - having successfully argued Riegel last term - he is also keeping a close eye on Levine.

He said in an interview that the case will clearly be a "topic of conversation" in Levine, but he conceded that the emphasis on implied rather than express preemption could affect the outcome.

"It's not clear how it's going to come out, but the Riegel case is a precedent that will be on the minds of the justices," Olson said. "Do you want juries across the country deciding or do you want these standards set centrally by experts?"

It isn't easy to predict a winner in Levine, in part because, as Vladeck notes, several of the more conservative justices, including Clarence Thomas, have concerns about finding pre-emption when it isn't explicitly authorized in congressional legislation.

"Some of the die-hard conservatives have great skepticism about the courts ability to wipe away causes of action without guidance from Congress," he said.

Thomas, in fact, was the sole dissenter in one of the pre-emption cases last term in which the court held that the Federal Arbitration Act trumps state law in a dispute involving TV's "Judge" Alex Ferrer. Preston v. Ferrer, 128 S. Ct. 978 (2008).

That was one of six preemption cases last term. The court ruled in favor of pre-emption four times, with one 4-4 tie in another case involving pharmaceutical companies, in which Roberts recused himself. Warner-Lambert v. Kent, 128 S. Ct. 1168 (2008).

In the remaining case, in which the court did not find preemption, it was a secondary issue in the dispute involving the punitive damages oil giant ExxonMobil is required to pay for the Exxon Valdez oil spill. Exxon v. Baker, 128 S.Ct. 2605 (2008).

The fact that the court is taking preemption cases is nothing new, said Rebecca K. Wood, a partner in the Washington office of Sidley Austin.

It is just getting more attention now because the court is finding for preemption more often, she added.

But Wood stressed that, of the six cases last term, five involved express preemption. Kent was the only one that didn't. "One term does not a trend make," she said, but "the court did appear to find in favor of preemption more than it normally does."

9th Circuit Cases

Although pre-emption is a dominant theme so far, there are a number of other potentially important cases among the 41 already scheduled for argument.

Several emanate from the 9th U.S. Circuit Court of Appeals, often characterized - not always accurately - as the Supreme Court's punching bag.

One is a challenge to the Navy's use of sonar devices off the coast of California, which environmentalists say is harmful to whales. Winter v. Natural Resources, 07-1239.

The oral argument is Wednesday. Winter is one of three 9th Circuit rulings on environmental issues up for review this fall.

Another 9th Circuit case, scheduled for oral argument in November, addresses whether prosecutors in a long-ago Los Angeles County murder case should receive absolute immunity after the man convicted of the crime, Thomas Goldstein, was found to be innocent after spending 20 years in prison. Van de Kamp v. Goldstein, 07-854.

The case that is likely to attract the most headlines this fall, however, comes out of the 2nd U.S. Circuit Court of Appeals.

It revolves around the question of whether TV networks should be fined when someone swears on live TV.

At issue is the Federal Communications Commission's decision to change its long-standing policy and fine networks for so-called "flying expletives," a move the 2nd Circuit struck down as "arbitrary and capricious." FCC v. Fox, 07-582.

Although characterized by many as a censorship case, Marty Lederman, of Georgetown Law Center, notes that the case - which will be argued on Election Day - actually rests on the Administrative Procedures Act, which the networks are relying on.

"But, looming over the case, is the First Amendment question," he conceded.

Likely to be less prominent in the public eye are a number of employment cases, including one focusing on whether employees are bound by mandatory arbitration when their contract is negotiated by a union. 14 Penn Plaza v. Pyett, 07-581.

Gibson Dunn partner Eugene Scalia, son of Justice Antonin Scalia and an expert on employment law, described it as "potentially one of the most interesting and significant labor and employment cases" of the term.

As for criminal law, there are several Fourth Amendment cases scheduled for argument.

In one being argued Tuesday, the court will decide whether evidence seized during an arrest should be excluded because the arresting officer was incorrectly advised by an another law enforcement agency that there was a warrant for the defendant's arrest. Herring v. United States, 07-513.

Roberts' Impact

The term is likely to provide further guidance as to how Roberts is shaping the court as chief justice in what will be his fourth one in charge.

Sidley Austin's Wood points, for example, to the "lopsided" majorities in the recent preemption cases as a sign of the court moving "towards consensus and narrower rulings" that Roberts is said to favor.

That could foreshadow a narrow ruling in favor of the drug companies in Levine that would bring an end to some state lawsuits but not others, Irvine's Chemerinsky suggested.

Such a conclusion could be reached, he said, by drawing a distinction between potentially dangerous drug risks that have been known about for a long time, as in Levine, and products that have gone to market more recently.

Whatever Roberts' influence, Olson - who knows better than to offer anything less than fulsome praise to the court when he has a case pending - pronounced himself pleased with the chief justice's impact so far.

"Roberts has demonstrated in a short time that he is and will be an outstanding chief justice," he said. "He is a leader, but is also a team player."