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65 N.Y.U. Ann. Surv. Am. L. 485 (2009-2010)
What Tort Theory Tells Us about Federal Preemption: The Tragic Sage of Wyeth v. Levine

handle is hein.journals/annam65 and id is 497 raw text is: WHAT TORT THEORY TELLS US ABOUT FEDERAL PREEMPTION: THE TRAGIC SAGA OF WYETH V. LEVINE RICHARD A. EPSTEIN* I. INTRODUCTION: THE STATE OF CURRENT PREEMPTION LAW Most of the papers in this conference volume grapple with whether the venerable federal preemption principle will block pri- vate tort rights of action based on state common law principles. Federal preemption derives from the Supremacy Clause, which stip- ulates that federal statutes, and the regulations adopted pursuant to them, trump any state law.1 Two recent Supreme Court decisions, Riegel v. Medtronic, Inc.2 and, especially, Wyeth v. Levine,3 now shape this debate. Taken together, these cases stand for two propositions. First, the doctrine of express preemption is alive and well in the Supreme Court; if Congress wants to block state tort actions against defendants that have complied with federal law, all it has to do is give the word. Second, while Congress has not spoken to the mat- ter, recent decisions of the Supreme Court make it exceedingly dif- ficult for defendants to persuade any court, federal or state, to preempt ordinary tort law actions under theories of either field or conflict preemption.4 Although the final verdict is not in, I am rue- fully confident that implied preemption in drug duty-to-warn cases * James Parker Hall Distinguished Service Professor of Law, The University of Chicago; the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution; Visiting Professor of Law, New York University. My thanks to the members of the New York Tort Group for their incisive and persistent criticisms of an earlier version of this paper, and to Sharon Yecies, University of Chicago Law School, class of 2011, for her valuable research assistance. 1. U.S. CONST. art. VI, cl. 2 (This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.). 2. 552 U.S. 312 (2008). 3. 129 S. Ct. 1187 (2009). 4. See, e.g., Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 452-53 (2005); see also infra text accompanying notes 154-63. 485 Imaged with the Permission of NYU Annual Survey of American Law

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