The Compelling Case of Diana Levine

Today’s NY Times features a cover story on Wyeth v. Levine, one of the most important cases before the Supreme Court this coming term. CAC has filed an amicus brief for this case, arguing in favor of Ms. Levine in the key area of federal preemption. From the Times:
In November, the Supreme Court will hear arguments about whether Ms. Levine may keep more than $6 million that a Vermont jury ordered Wyeth, a pharmaceutical company, to pay her for failing to warn her adequately about the risks of one of its drugs. The case, the latest in a brisk parade of similar ones, will help define the contours of a signature project of the Roberts court.

In legal jargon, the cases concern “pre-emption,” a doctrine that can bar injured consumers like Ms. Levine from suing in state court when the products that hurt them had met federal standards. The issue is less boring and more consequential than it sounds, and Ms. Levine’s case is shaping up to be the most important business case of the term….

Business groups, often supported by the Bush administration, have vigorously pursued pre-emption arguments, hoping to build a barrier against many kinds of injury suits. Plaintiffs’ lawyers oppose broad pre-emption doctrines, saying they short-circuit valid claims arising from terrible injuries.
It bears noting that before he was in favor of it George W. Bush also claimed to oppose heavy-handed federal preemption, though his administration has now come to epitomize it. Even today on issues such as abortion, Republican leaders like to wax lyrical about the need to return discretion to the states, while moving to crack down on state innovation in areas such as environmental and consumer protection.

The Wyeth case could have a big impact on the lives of millions of Americans. The Supreme Court’s ruling will determine whether certain federal regulations, such as drug labeling, will serve as a minimum standard of protection on which individual states can then build, or a maximum level of protection that broadly preempts and negates states’ efforts to further safeguard consumers.

CAC holds that the Constitution is clearly on Ms. Levine’s side in this instance in endorsing the former, because the Vermont Supreme Court’s decision did not contradict any federal laws. Our brief argues:
As scholarship has demonstrated, the Supremacy Clause authorizes displacement of State law only to the extent it directly contradicts a valid federal law. No other provision of the Constitution can support a theory of obstacle preemption either. To the contrary, the text and history of the Constitution express a commitment to the preservation of State authority in traditional areas of local regulation.
Text and History will be keeping readers appraised of this case, which is set for argument Monday, November 3rd.