The purpose of this Article is to give a brief history of the origin and development of the doctrine of sovereign immunity both in the common law and the civil law. After treating the doctrine's European origins, the Article will then cross the Atlantic and likewise sketch the development of the doctrine in the United States and Louisiana. After establishing this background, the doctrine and its myriad permutations can be examined as it applies to one of the greatest disasters in our country's history--Hurricane Katrina. At that point, the viability of the doctrine can be examined against the backdrop of the stark reality of the devastation and suffering wreaked upon Louisiana, caused in part by the errors and omissions of our federal government.
The Origins of Sale: Some Lessons from the Romans
The recognition of the contract of sale is rightly said to be a key achievement of the Roman jurists. In Roman law, it had three characteristics. First, a sale is entered into informally. The parties are bound without the use of any special formality such as an oath, a document, a deed, or even a handshake. Second, sale is what the Romans called a contract of good faith (bonae fidei) as distinguished from a contract of strict law (stricti iuris). The parties are bound, not only to what they said, but to all the obligations that follow as a matter of good faith. Third, a sale is binding upon consent before delivery of the goods to be sold or payment of any of the purchase price. Virtually all modern legal systems recognize a contract of sale with these three features. The Romans were the first.. . .
When Worlds Collide: The Supreme Court Confronts Federal Agencies with Federalism in Wyeth v. Levine
On March 4, 2009, in Wyeth v. Levine, the United States Supreme Court rejected the viability of a preamble to a 2006 Food and Drug Administration (FDA) prescription drug-labeling regulation that purported to preempt state tort law, concluding that it “does not merit deference.” The Court upheld the verdict of a Vermont jury in favor of plaintiff Diana Levine against the manufacture of the prescription drug, on state tort law failure-to-warn theories, for an injury she had suffered nine years before, in April 2000. The injury resulted in the amputation of her right forearm and ended her career as a professional musician. Had the Supreme Court given deference to the FDA “Preamble,” and held Ms. Levine's claim to be preempted by the FDA's approval of the drug, her $6.77 million jury award would have been vacated, and she would have gone uncompensated for the loss of her arm and her livelihood. Far beyond the consequences to a single plaintiff, the claims of any thousands of prescription drug plaintiffs in cases pending across the country--representing billions of dollars in compensatory damages--would have then been dismissed. Dismissal would leave these plaintiffs without recourse and would immunize prescription drug manufacturers from financial accountability for the health, safety, and economic depredations of dangerous or improperly marketed drugs.. . .
The Defense of Preemption: A View from the Trenches
Most lawyers who have any familiarity with the law of federal preemption, and in particular the United States Supreme Court's cases involving the preemption of state tort requirements, would freely admit that the law is a muddle. Beginning with the Court's fractured 1992 decision in Cipollone v. Liggett Group, Inc., which was argued twice before it was decided, the Court has issued a series of decisions, some of them fractured and confusing, that have alternatively cheered and flummoxed the plaintiffs' bar as well as product manufacturers, transportation companies, and other businesses that regularly rely on the preemption defense. Unfortunately, these cases--which are among the most hotly contested of all cases on the Supreme Court's docket, judging by amicus participation--have produced significant confusion in the law of preemption generally. As someone who has participated in many of these cases over the years since Cipollone, my purpose is to offer a few observations drawn from my own experience about some of the major disputed issues in preemption law today, including the proper role of courts in resolving preemption cases. I also hope to make a few broader points about the preemption doctrine that are often overlooked in the acrimonious debate over tort cases.. . .
Judicial Deference and Regulatory Preemption by Federal Agencies
This Article will attempt to describe the state of the law as it currently exists relating to preemption associated with agency regulations, especially in light of three preemption decisions by the Supreme Court in its October 2008 term—Wyeth v. Levine, Altria Group, Inc. v. Good, and Cuomo v. Clearing House Ass'n. The Article will then suggest how courts should assess claims of preemption of state law associated with federal agency regulations.
Preemption of State Common Law by Federal Agency Action: Striking the Appropriate Balance that Protects Public Safety
After a brief review of the basics of preemption, this Article considers the public policy underlying preemption of common law claims by federal agency regulations. Next, the Article examines the recent development of preemption law, following two major United States Supreme Court decisions on preemption and President Barack Obama's instructions on preemption to heads of federal regulatory agencies. Finally, the Article notes that when the tension between federal regulations and state tort claims does not rise to the level of preemption, state law provides courts with discretion to consider the manufacturer's compliance as satisfying the common law standard of reasonable care and establishing that the product is not defective. The Article concludes by expressing concern that the recent rage against preemption in favor of litigation may lead to less safe products and place the public at risk.
A Separation-of-Powers Defense of the "Presumption Against Preemption"
In Wyeth v. Levine, the United States Supreme Court revitalized the sometimes dormant “presumption against pre-emption” by declaring it one of two cornerstones of preemption jurisprudence. Under the presumption, the analysis of a claim that federal law preempts state law starts with “‘the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”’ Although the Court previously had instructed lower courts that the preemption analysis always begins with a “basic presumption against pre-emption,” the Court itself often has honored that mandate in the breach--when it has bothered to mention the presumption at all.. . .
Quasi-Preemption: Nervous Breakdown in Our Constitutional System
A half century ago, in The Relations Between State and Federal Law, Professor Henry Hart of Harvard defined the public need for harmonizing the legal dictates issuing from the two levels of sovereignty established in the United States Constitution:
The law which governs daily living in the United States is a single system of law: it speaks in relation to any particular question with only one ultimately authoritative voice, however difficult it may be on occasion to discern in advance which of two or more conflicting voices really carries authority. In the long run and in the large, this must be so. People repeatedly subjected, like Pavlov's dogs, to two or more inconsistent sets of directions, without means of resolving the inconsistencies, could not fail in the end to react as the dogs did. The society, collectively, would suffer a nervous breakdown.. . .
Introduction to the Symposium: Federal Preemption of State Tort Law: A Snapshot of the Ongoing Debate
Woodrow Wilson observed in 1908 that “[t]he question of the relation of the States to the federal government is the cardinal question of our constitutional system.” “It cannot . . . be settled,” he said, “by . . . one generation, because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question.” The relation of the states to the federal government has been a dominant constitutional issue throughout our history covering a wide range of issues--such as enumerated and implied powers, scope of the commerce clause, taxing and spending powers, enforcement of the Fourteenth Amendment, and criminal due process. In recent years none has been more important than federal preemption of state law by administrative agencies.. . .
Combating Antimicrobial Resistance: Regulatory Strategies and Institutional Capacity
Amnesia is a common, important, but rarely noted side effect of antibiotics. Apart from medical historians, few recall the severe morbidity and mortality once associated with acute bacterial infection. However, decades of antibiotic overuse and misuse have compromised the long-term availability and efficacy of these life-saving therapies. If designed and implemented appropriately, regulation can reduce the risk of bacterial infection, reserve antibiotics for circumstances where they are necessary, and rationalize the use of the most powerful agents. Regulation of antibiotic resistance can be justified, and should be guided, by both efficiency and fairness. A range of regulatory options are available--some information-based, some incentive-based, some command-and-control--each of which has indications, strengths, and weaknesses. A desired set of regulatory strategies must then be matched with the appropriate legal and regulatory institutions. A renewed focus on regulatory and institutional design has significant potential to reduce antibiotic-resistant bacterial infections and increase the effective life of existing and new antibiotics.