Access to courts and preemption of state remedies in collective action perspective.

• Author: Levy, Richard E.
• Position: Law Review Symposium 2009

The extent to which federal law may preempt state common law tort remedies, thereby limiting litigants' access to court, is an increasingly important issue. (1) Businesses that produce and sell products increasingly assert preemption defenses against product liability and related lawsuits by injured consumers based on regulations establishing health and/or safety standards that apply to their products. (2) At the same time, political and legal developments have made it more difficult to adopt strong health and safety regulations. (3) Thus, preemption of state tort remedies may lock in weak federal regulations, prevent states from protecting citizens, and leave consumers without adequate recourse against dangerous or unhealthy products. Nonetheless, there may be good reasons for federal law to be designed or construed so as to preempt state remedies.

"Remedial preemption" raises fundamental questions about the proper allocation of authority between the federal and state governments and about the role of courts in interpreting statutes and providing remedies for those who suffer injuries. (4) At bottom, remedial preemption cases present the same basic questions, even if the answers to those questions will inevitably vary depending on the specific federal statutes and state remedies at issue. Developing a workable framework for analyzing remedial preemption issues can therefore help to ensure an appropriate accommodation of the federal and state interests at stake and promote consistent application of preemption doctrine to state judicial remedies.

In a previous article, we developed a "collective action" framework for preemption analysis and applied it to the issue of state environmental regulations addressing the problem of global climate change. (5) In this contribution to the symposium, we apply that approach to the issue of remedial preemption. Our analysis suggests that while remedial preemption may be justified in some cases, courts should not lightly infer remedial preemption unless: (1) a primary purpose of the federal law is to ensure uniform standards to promote free movement of goods, prevent the export of regulatory burdens by "downstream" states, or solve a not-in-my-backyard (NIMBY) problem; and (2) there is strong evidence that state judicial remedies (as opposed to direct state regulation through legislation or the actions of administrative agencies) would interfere with the achievement of those goals. In addition, we conclude that preemption of one common law cause of action does not necessarily warrant preemption of different causes of action for remediation of the same injury. Finally, we argue that courts should be especially reluctant to read the preemptive effect of federal law so as to leave injured persons without any remedy whatsoever.

Our argument proceeds in three parts. Part I of the Article describes the basic collective action framework for analyzing remedial preemption issues. This discussion identifies important differences among various kinds of preemption, develops the essential premises of our framework, and considers the kinds of federal purposes that might justify preemption of more stringent state health and safety regulation. Part II of the Article applies this framework to the problem of remedial preemption, with particular attention to the ways in which state judicial remedies differ from state regulation by means of statutes or administrative rules, including the differences between legislatures and courts, between legislative rules and judicial decisions, and among possible preemptive effects on judicial remedies. Part III analyzes how the Supreme Court's 2009 decision (6) holding that state tort remedies based on failure-to-warn claims were not preempted by federal regulation of the content of warning labels for drugs comports with our analysis. A final section summarizes our conclusions and their implications.

1. COLLECTIVE ACTION AND PREEMPTION

   In this part of the Article, we articulate the basic elements of our collective action framework for preemption and its application to remedial preemption issues. We begin by drawing some basic distinctions among certain kinds of preemption that prove useful in focusing the issues. We then identify the basic premises of our approach, including a strong presumption against preemption, the central role of federal statutory purposes in preemption analysis, and the relevance of collective action principles in understanding the significance of federal statutory purposes for preemption analysis. Finally, we consider the kinds of federal purposes that might support preemption of state judicial remedies that effectively impose more stringent health and safety standards on defendants.

   1. Types of Preemption

      As an initial matter, it is important to clarify some basic distinctions that we will use throughout the discussion. The first distinction is between preemption as a result of a "direct conflict" between state and federal law, on the one hand, and preemption that occurs because federal law "displaces" state authority in a given area, on the other. The second is a distinction between what may be called "floor" preemption and "ceiling" preemption.

      1. Direct Conflicts vs. Displacement of State Authority

         Traditional preemption doctrine distinguishes between express and implied preemption, and between two kinds of implied preemption, federal occupation of the field and conflict preemption. (7) Under this traditional analysis, implied occupation of the field arises when federal regulation is so pervasive and federal interests are so dominant that state law is completely preempted in the entire field. Conflict preemption arises either when it is impossible to comply with both federal and state law, or when the state law stands as an obstacle to the accomplishment of the object and purpose of the federal law.

         The distinction between direct conflict preemption and displacement preemption is similar to, but different from, the traditional distinction between "conflict" preemption and "occupation of the field" preemption. Direct conflict preemption applies not only when it is impossible to comply with both federal and state law, but also when the state law, on its face, creates a direct and clear conflict with federal law. (8) Thus, direct conflict preemption is broader than the "impossibility of compliance" strand of conflict preemption, but narrower than the "obstacle to the accomplishment of federal objectives" strand. (9) For example, if a state permit allowed the dumping of toxic waste in violation of federal law, there would be a direct conflict and federal law would preempt the permit, which could not serve as a defense to an enforcement action based on the federal violation (absent an express savings provision). (10)

         Displacement of state authority operates more broadly to prevent the state from exercising its authority in a particular regulatory area or manner, and includes not only traditional field preemption, but also the broad application of the strand of conflict preemption based on an obstacle to the accomplishment of federal purposes or objectives. Thus, for example, if federal law strikes a careful balance between regulatory burdens and health benefits, state laws imposing more stringent regulations might stand as an obstacle to the purpose of striking this balance, even if the requirements for federal occupation of the field are not met. In such a case, state regulatory authority is displaced broadly.

         When there is a direct conflict between federal and state law, the superiority of federal law follows directly from the Supremacy Clause (whether or not it is possible to comply with both). (11) To illustrate the difference between direct conflicts and displacement, suppose that a federal agency adopts health and safety regulations governing the operation of power plants. Even if the federal regulations include standards for siting power plants, preemption of state and local zoning authority would require a strong showing of congressional intent to displace that authority, given the traditional control that states and localities have had over land use decisions. But if the federal agency issued a permit approving the location of a particular proposed power plant, that permit would preempt application of even a pre-existing zoning law (such as one that permits only residential use at the location of the proposed plant) to block construction of the plant. The zoning law would be in direct conflict with the federal permit, even though it would be possible to comply with both sets of laws by not building the plant. (12)

         By way of contrast, field preemption, or a broad conclusion that certain general categories of state regulation stand as an obstacle to the accomplishment of the object and purpose of federal law, effectively displaces state authority to act in a given area. (13) It is the displacement of state authority to provide judicial remedies that concerns us here. This sort of displacement, which rests on the conclusion that the retention of state regulatory authority is inconsistent with the purposes of federal law, represents a significant interference with the interests of states.

      2. Floor and Ceiling Preemption

         A second distinction that informs our approach is the distinction between "floor" and "ceiling" preemption, which we borrow from William Buzbee. (14) As the terms suggest, floor preemption occurs when federal law sets a minimum standard of regulation or protection, establishing a floor that state laws cannot lower, but leaving states the option of providing more stringent protections. In the context of state and federal remedies, floor preemption would prevent compliance with a less stringent state law from operating as a defense to a federal remedy for violation of federal law. Floor preemption would not impose any restrictions, however, on state remedies that offer greater protection than those...