FedSoc LiveBlog: The Future of Federal Pre-Emption featuring Judge Pryor

November 12th, 2009

Litigation: The Future of Federal Pre-Emption
Thursday, Nov. 12
11:30 a.m. – 1:45 p.m.
State Room

Dr. Michael S. Greve, John G. Searle Scholar, American Enterprise Institute
Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest/Public Service, The George Washington University Law School
Prof. Catherine M. Sharkey, New York University School of Law
Hon. Daniel E. Troy, Senior Vice President and General Counsel, GlaxoSmithKline
Moderator: Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit

Judge Pryor introduces the panelists.

Michael S. Greve

Topic: Preemption in Rehnquist & Roberts Courts

Acknowledges the esteemed Michael Petrino for his assistance in preparing this analysis.

Graph with preemption votes by Court. Preemption votes by court also decreasing, but too few cases by Roberts Court to create conclusions.

He is showing lots of graphs. Hard to summarize the bar graphs and charts.

Discussing Wyeth, Thomas, and Express Preemption provisions.

“No single Kennedy-swing vote that routinely throws 5-4 vote.”

Justice Souter most often in the majority of preemption case on Roberts Court.

Pics and video after the jump

Alan Morrison

What is meaning of federal law and how does it preempt state law?

Where you stand is where you sit? 75% of time Morrison is opposed to preemption, bc it is in tort and consumer protection, and that wipes out benefits for people. But in favor of preemption for state regulations for charity filings.

Framers never considered modern issues of preemption, except in context of alternative regulatory system. Did not want the states to regulate the same products Congress is regulation.

First item on wish list: Congress should think of these questions, and be clear what is preempted and what is not protected.

Catherine Sharkey

I don’t put a lot of faith in Congress. Congress punts on pre-emption. Presumption against preemption highly problematic. Trotted out in some cases, missing in others. No reason to have presumption against preemption.

Daniel Troy

Take advantage of free expertise on the panel.

Wyeth missed opportunity for pharmaceutical industry. The rationale approach would be to have an alternative compensation fund.

FDA knows people will be harmed by product due to no fault of anyone. Entitled to some measure of compensation. Instead, what we do is rely on the lottery called the tort system which does not operate in fair or science based manner.


Roger Pilon asked a question of only 40 seconds. That alone warrants a video clip 🙂