Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Product Liability Law & StrategyKickerFeaturesTopicsCommercial LawLitigationSectionsNewsLJN Newsletters

Preemption Paradox

By J. Christopher Allen, Jr.
July 29, 2009

For many Supreme Court observers, 2008 dawned with hope ' perhaps not HOPE on the order of Grant Park on election night, but hope nevertheless. Four separate preemption cases were among the ranks of the Court's docket. Collectively, they offered an opportunity for the Court to take a significant step toward providing much-needed clarity in connection with its preemption jurisprudence ' or so it seemed. Because Chief Justice Roberts recused himself, Warner-Lambert Co., LLC v. Kent resulted in a 4 to 4 (non)decision that produced no published opinion. 128 S. Ct. 1168 (2008). Oral argument in Wyeth v. Levine, Docket No. 06-1249, did not take place until Nov. 3, 2008, and the Court did not issue a decision until March 4 of this year. That left Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008) and Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008). Both decisions assessed express preemption provisions and helped to fill voids created by highly fractured antecedent Supreme Court decisions ' Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) in the case of Riegel and Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) in the case of Altria Group. However, Riegel and Altria Group are difficult to reconcile in fundamental ways, and, consequently, they did little to provide meaningful guidance to litigants and lower courts.

Riegel Finds Express Preemption Under the Medical Device Amendments

This premium content is locked for LJN Newsletters subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
The DOJ's Corporate Enforcement Policy: One Year Later Image

The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.

The DOJ's New Parameters for Evaluating Corporate Compliance Programs Image

The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.

Use of Deferred Prosecution Agreements In White Collar Investigations Image

This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.

Bankruptcy Sales: Finding a Diamond In the Rough Image

There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.

Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability Image

This article explores legal developments over the past year that may impact compliance officer personal liability.