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Editorial address the Supreme Court’s pre-emption test

Oral arguments were held last week in Bruesewitz vs. Wyeth and much of the argument turned on the meaning of the word “unavoidable.” The editorial in The New York Times by the American Association for Justice addressed that the real issue was much bigger – the case of whether the family of a girl who was badly injured by a vaccine can sue the manufacturer in state court. The argument also involved if such personal injury lawsuits are barred by a 24 year-old federal law that blocks this sort of lawsuit if the personal injury or death resulted from side effects that were unavoidable.

The issue – pre-emption – is a hot and often contested issue in constitutional law The vaccine issue is only one area where pre-emption disputes have large practical effects. As pointed out by the editorial, the Bush presidential administration declared the pre-emption of many state laws and Congress reacted by doing nothing. For example, Congress tried to stop the State of California from raising the bar on auto emission and giving greater protection to consumers. On the other hand, President Obama has issued a memorandum halting the practice.

Eyes will be watching the Roberts court, the most conservative court in half a century, rules on pre-emption cases. Nearly every pre-emption case turns on the particulars of the statute in question and these cases provide an important test as to whether the court’s members can reason their way through these challenges and strike the right balance of power. Under the supremacy clause of the Constitution, state laws cannot interfere with the operation of federal government. But where state efforts to protect citizens and compensate victims do not conflict with federal law, the Chicago injury lawyers agree with the editorial that pre-emption should not be used as a weapon to defeat them.

Read more about the pre-emption cases at The New York Times.