Thursday, December 4, 2008
The Supreme Court heard oral arguments this week in Haywood v. Drown. At issue: Whether New York's ban on section 1983 damage actions against state correctional officers in state court violates the Supremacy Clause.
A good part of the oral argument focused on whether the NY ban--Correction Law section 24--was "jurisdictional" and a "neutral state rule regarding the administration of the courts." The language comes from Howlett v. Rose, a 1990 Supreme Court case that the lower court cited in support of this: "One permissible exception" that allows states to deny enforcement of a federal right is "when a state court lacks jurisdiction due to a 'neutral state rule regarding the administration of the courts.'"
Is section 24 such a rule? Yes, says the state: It is a jurisdictional limitation based on the state's neutral desire to limit "vexatious" litigation. No, says the plaintiff: It carves out this special exception for correctional officers, treating them differently than all others for 1983 purposes, and reflects the state's substantive disagreement with the remedies under 1983.
The law professors' amicus is quite good; take a look at the excellent discussion of the Supremacy Clause and argument III on this jurisdictional question. Here's the respondents' brief; and here's the oral argument transcript.
Monday, October 20, 2008
The Wall Street Journal reported last week that Bush administration officials "are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states."
At issue is the practice of administrative agencies writing preemption clauses into proposed regulations, sometimes at OMB's behest, even though authorizing legislation does not contain a preemption provision. According to the WSJ, former administration domestic policy adviser Jay Lefkowitz said that the administration decided not to press its preemption agenda in Congress, because it might lose. It apparently has decided to take matters into its own hands.
The administration has argued that the clauses are evidence of federal preemption of plaintiffs' state tort claims, as long as defendants comply with federal law, thus undermining plaintiffs' claims--and protecting corporate defendants--in areas where the federal government regulates.
The Trial Lawyers Association (now the American Association for Justice) was quite critical in its report, after undercovering evidence of the practice through FOIA requests. The Chamber of Commerce's Institute for Legal Reform has been supportive of administration preemption efforts.
The Court may weigh in next month in Wyeth v. Levine, a case involving the federal preemptive effects of the Federal Food, Drug, and Cosmetic Act's labelling requirements. The FDA's preemption clause plays a bit role in briefing on the larger conflict preemption issue, but the administration's amicus brief addresses it squarely in Argument C.2., running from page 26 to page 27 (of the brief, not of the pdf file). The administration writes:
In the preamble to a January 2006 rule concerning the labeling of drugs, FDA explained that the government's "long-standing view" is that "FDA approval of labeling under the [FDCA] * * * preempts conflicting or contrary State law," especially considering that "FDA interprets the [FDCA] to establish both a 'floor' and a 'ceiling'" for labeling. 71 Fed. Reg. at 3934, 3935.