Strange bedfellows: the politics of preemption.

• Author: Mullenix, Linda S.
• Position: Law Review Symposium 2009

INTRODUCTION

Underscoring the judicial resurgence of interest in the doctrine of federal preemption, the United States Supreme Court opened its 2008-2009 Term on October 6, 2008 with oral argument in Altria Group, Inc. v. Good, (1) followed swiftly in November by argument in Wyeth v. Levine. (2) Both these preemption appeals follow in the wake of the Court's spring 2008 decision in Riegel v. Medtronic, Inc., (3) upholding express preemption of state law claims under the Medical Devices Amendments Act of 1976.

Since the Court's 1992 decision in Cipollone v. Liggett Group, Inc., (4) federal preemption has been a doctrine of especial scholarly focus, bearing as it does on constitutional questions concerning the allocation of power between the federal and state governments and among the states themselves. (5) Consequently, an entire cottage industry of constitutional law and federal courts scholars have produced a sizeable library relating to preemption doctrine, and in recent years the academic literature has experienced a veritable tsunami of scholarship on federal preemption. (6) Much of this scholarship focuses on purported justifications for the two types of preemption--express and implied preemption--and further close parsing of the rationales for conflict and field preemption. (7)

Several commonly-held generalizations about the Rehnquist and Roberts Courts are implicated in the discussion of preemption doctrine. One sweeping generalization is that the conservative shift in the Court's personnel has resulted in limiting access to justice, (8) a theme that implicitly underlies this symposium. Another generalization posits that the Court during the past two decades has consistently favored states-rights claims, illustrated for example by the Court's robust enforcement of Eleventh Amendment sovereign immunity defenses. (9) Preemption doctrine, however, is in tension with these trends, because preemption cuts off a claimant's ability to pursue state-based claims. Thus, federal courts' application of preemption doctrine both restricts access to justice while undermining state sovereignty.

The purpose of this Article is not to analyze the 2008-2009 Court's decisions in the Altria and Wyeth cases, nor to examine preemption jurisprudence embodied in the Court's decision last Term in Riegel. Rather, the focus of this Article is on the politics of preemption, exploring the political and policy bases undergirding the doctrine. (10) This Article attempts to illustrate how preemption doctrine is at war with itself and consequently has engendered strange political bedfellows, arrayed along interesting political fault lines. (11) Moreover, the Article suggests that the preemption landscape is now more complex and uncertain, given the Court's opinions in Riegel, Altria, and Wyeth, complemented by the shift in national political control evidenced by the November 2008 elections.

Preemption doctrine has engendered at least three sets of strange bedfellows. First, preemption doctrine has united the pro-business, states' rights, and libertarian wings of the conservative movement. Second--and more unusual--preemption doctrine has allied some conservative business interests with some liberal advocates of consumer protection. And, third, preemption doctrine has fractured the plaintiffs' bar, inspiring a division between advocates of aggregate versus individual litigation. How these doctrinal schisms and shifting ideological alliances have developed is an interesting story.

The first part of this Article explores the business community's strategies to advance the fortunes of a robust preemption doctrine through legislative and administrative lobbying, as well as judicial activism. This portion of the Article traces current preemption advocacy back to the Republican movement for civil justice reform in the late 1980s and early 1990s, ultimately expressed in the long-term civil justice reform platform articulated in the Republican Contract for America.

The latter portion of this Article then discusses the schism among various groups relating to support for preemption doctrine, focusing on the three sets of strange bedfellows. First, this section traces conservative advocacy of preemption doctrine through various institutional auspices, including advocacy in the Court's recent consideration of the Riegel, Altria, and Wyeth appeals. Preemption doctrine, it will be seen, has managed to unite disparate wings of conservative thinking. Nonetheless, conservative thinking has consistently supported a pro-preemption stance.

Second, preemption doctrine has made strange bedfellows of both conservative and liberal jurists in some cases. As the Court's 8-1 decision in Riegel demonstrates, the Court's cluster of liberal Justices are perfectly willing to unite with the Court's conservative wing to uphold express preemption of state law claims. The philosophical glue uniting these Justices bears some examination, because this glue can become undone in other preemption litigation, especially implied preemption cases, such as Wyeth (12) and Altria. In addition, given the possible political shifts embodied in the November 2008 election results, the future fate of preemption doctrine as an access-control mechanism is now more unclear and muddled than in the past.

Finally, preemption has made strange bedfellows among the plaintiffs' bar, pitting the interests of aggregate litigation advocates against those of the traditional plaintiffs' bar. In the concluding sections, this Article explores the development of the plaintiffs' class action bar's strategy to advance its interests through judicial, legislative, and lobbying efforts, including advocacy of preemption doctrine. When the plaintiffs' class action bar was forced to abandon aggregate litigation in state forums as a consequence of the Class Action Fairness Act of 2005 (CAFA), (13) aggregate litigation proponents became ardent champions of the federalization of class action litigation and, consequently, supporters of a robust theory of preemption. Consequently and ironically, these former champions of state law tort forums reversed course and endorsed federalization of tort law. Thus, in an unusual turn of events, the class action plaintiffs' bar aligned its interests with some of the most conservative business interests in the United States.

The class action bar's support of federal preemption, however, stands in conflict with the position of the traditional plaintiffs' bar. Historically, virtually all public interest law groups have advocated against application of preemption doctrine because it denies access to the courts and cuts off the rights of injured tort claimants to a forum for compensatory relief of their claims. As partial evidence of this position, congressional liberals swiftly introduced legislation to undo the preemption consequences of the Court's Riegel decision. (14)

As the concluding discussion suggests, while conservative attitudes towards preemption seem at least doctrinally and politically consistent, the liberal approaches to preemption do not. Moreover, support for a robust preemption doctrine has resulted in ideological costs to both conservatives and liberals. For conservatives, robust enforcement of preemption doctrine is in derogation of states' rights, local police powers, and the ability of state courts to adjudicate the claims of their own citizens. Robust enforcement of preemption also frustrates the ability of state courts to serve as laboratories for experimentation and change.

For liberals, robust enforcement of preemption doctrine has the consequence of depriving claimants' access to justice in state court forums. While conservatives may comfortably embrace the diminution of states' rights implicit in preemption doctrine precisely because it does limit access to justice, liberals ought to be uncomfortable with the consequent restrictions on the ability of injured people to obtain compensatory state law tort relief against a background of weak federal or insufficient administrative regulatory oversight.

Moreover, it is disquieting that some purported liberals have embraced and advocated a preemption doctrine that seems so clearly not in the interests of injured parties or small claims consumers. Fundamentally, something seems entirely amiss when purported liberals urge a preemption doctrine that cuts off access to justice for individuals. Even more troubling, in the quest to federalize class action settlements and to achieve global settlements at any price, the class action plaintiffs' bar has aligned itself with its traditional adversaries, in an unseemly preemption dance.

Thus, the debate over preemption has exposed interesting political alliances and fault lines among advocates for justice. How these political alignments and schisms will play out in ensuing years remains an open question. Nonetheless, as important as it is to engage in close doctrinal and textual analyses over constitutional federalism, it is perhaps equally important to understand the political alliances influencing the evolution of preemption doctrine.

1. THE ROAD TO PREEMPTION: THE CONSERVATIVE PROGRAM FOR CIVIL JUSTICE REFORM

   And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns.... One thing, however, is certain already: the transformation of the court was no accident. It represents the culmination of a carefully planned, behind-the-scenes campaign over several decades to change not only the courts but also the country's political culture. (15) A. The Development of a Pro-Business Agenda

   As Jeffrey Rosen has noted, over the past twenty-five years the conservative, corporate, and business communities have engaged in a concerted, deliberative campaign to reform civil justice in the United States. These efforts have been manifested through an array of institutional initiatives and advocacy efforts. In...