The odd cross-currents of federal pre-emption

The National Law Journal

Federal pre-emption, once an eye-glazing and rarely discussed topic, is now front and center on the Supreme Court’s business docket – including two cases argued in the just-completed November argument cycle.

Whether or not federal statutes should trump state law or, more importantly, state tort actions, is far from an abstract question for businesses in pre-emption cases. Businesses, by and large, would vastly prefer a single federal regime – even one controlled by a Democratic administration – over the unruly and unpredictable patchwork of 50 state legal systems.

Adding to the interest level is the awkward spot in which pre-emption cases put justices.  Conservatives who might ordinarily embrace both state sovereignty and business interests sometimes have to pick one over the other. Likewise liberals, who might otherwise favor a strong federal role, sometimes gravitate toward states rights when states give greater protection to consumers.

The cases argued in the last two weeks posed those very problems. On November 3, the Court heard Williamson v. Mazda Motor of America, which offered a choice between a more permissive federal regulation on car seat belts or product liability litigation in the case of fatal car accident. Six days later, the Court considered AT&T Mobility v. Concepcion, where the issue was whether the Federal Arbitration Act protects an arbitration clause in a consumer contract from being invalidated by state courts finding the clause unconscionable.

Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, attended both arguments. Her organization, which takes a progressive view of the Constitution’s text and history, filed briefs against federal pre-emption and on the side of consumers in both cases. In this video interview with Supreme Court correspondent Tony Mauro, Wydra discusses the cross currents in pre-emption cases and analyzes how both arguments went. Wydra was formerly with the Quinn Emanuel Urquhart & Sullivan.

David Frederick wrote the book on how to argue a case before the Supreme Court. With publication of the second edition of Supreme Court and Appellate Advocacy, Frederick talked with Tony Mauro about the special nature of arguing before the high court.