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Daniel J. Meltzer, Preemption and Textualism, 112 Mich. L. Rev. 1 (2013).

Professor Daniel Meltzer’s article on federal preemption and statutory interpretation is not exactly a torts article. But for those of us who believe that federal preemption in products liability is among a handful of the most pressing and controversial tort issues today, Preemption and Textualism, is an essential read. One of the nation’s most admired federal courts scholars, recently back from a stint in the Obama administration, Professor Meltzer is an ideal commentator on contemporary debates about the proper scope of federal preemption doctrine.

Meltzer’s target is the interpretive method of textualism. Textualism, he argues, is not up to the task of handling the important preemption issues before the Supreme Court. In particular, Meltzer demonstrates that, while Justice Thomas denounced “obstacle preemption” as inviting unconstrained judicial lawmaking, neither Thomas’s reliance on statutory text nor his putative rejection of obstacle preemption holds up to close analysis.1 In the end, Justice Thomas, like his conservative brethren, inevitably turns to purposive analysis.

Three features of Meltzer’s analysis struck me as especially interesting and valuable. First, he argues persuasively that issues regarding the harmonization of state and federal laws are typically outside of the awareness of members of Congress who draft or vote for statutory text, even assuming they were within anyone’s awareness when a statute was passed. Add to this legislative gridlock and the unlikelihood of amendment, and the assumption that text reflects legislative will evaporates into thin air. Second, many of the words and concepts that must be analyzed in a preemption case are notoriously supple. This includes, for Meltzer, the interpretation of the word “requirement” in preemption clauses, and the concept of “logical impossibility” that (supposedly) undergirds the only form of implied preemption (impossibility) that Justice Thomas will tolerate.

A third and especially valuable feature of Meltzer’s article relates to the presumption against preemption, which has recently come under attack from Justice Thomas, relying upon important research by Professor Caleb Nelson.2 Nelson has claimed that the text of the Supremacy Clause was modeled after non obstante clauses commonly utilized by late 18th Century American legal draftsman. During that era, Nelson argues, such provisions were actually intended to displace the normal presumption that courts should strain to render existing statutes operative and viable in the face of later legislation that appears to repeal them. On this view, the Supremacy Clause should actually be interpreted to signal a rejection of any presumption against preemption. Meltzer’s cleverest criticism of this argument is that it proves too much: it entails that the Supremacy Clause is inconsistent with the Thayerian principle that statutes should be interpreted as constitutionally permissible, where possible. Most relevantly to tort law, Meltzer observes that the non obstante argument, even if it were justified historically and textually, addresses only the relationship between federal statutes and prior state statutes; it has no obvious implications for preemption of common law doctrine. Meltzer’s article concludes with a nuanced but confident defense of the presumption against preemption.

While Meltzer’s article is careful and illuminating, it seems to have been written without the benefit of a big picture of what has happened in products liability preemption litigation over the past two decades or so. Neither the text nor the legislative history of the federal statutes governing drugs, medical devices, or automobiles displays even a hint that Congress aimed to curtail products liability litigation (which was private, common law, traditionally rooted in compensatory goals, and often understood to be strict liability). By the mid-1980s, product manufacturers (and others) had pulled together a powerful movement that saw the attraction of federal tort reform, and, largely failing to persuade Congress, turned to the Court as a vehicle for national law reform. Combining an expertly honed litigation strategy with the ascendant law-and-economics conception of tort law as regulatory (which had never been a significant part of how judges or legislators understood torts), the tort reform movement convinced the Court to use preemption doctrine as a tort reform tool. As torts professors, we can see Geier and its progeny as of a piece with Daubert and BMW v. Gore and their progeny. Just as the Federal Rules of Evidence provided the means through which the Court could address ‘junk science,’ and the Due Process Clause of the Constitution anchored the Court’s critique of punitive damages run ‘amok,’ the Supremacy Clause is now the hook for softening what the Justices perceive to be unduly plaintiff-friendly liability standards.

Meltzer certainly succeeds in using preemption doctrine to demonstrate the shortcomings of textualism in action, but purposivism in action contains its own perils too, and Meltzer – coming from outside of tort law – may not be as alert to these concerns as one might wish. To be sure, his defense of the presumption against preemption (as against Justice Thomas and Professor Nelson) does indeed display an appreciation for federalist concerns. However, when Metlzer writes that “the task of fashioning a workable legal system—one that integrates state and federal law— will necessarily require a significant decisional role for the courts” he seems to be inviting just the sort of intrusion that rightly concerns Justice Thomas.

The Supreme Court’s most recent pharmaceutical preemption decision — Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (2013) — illustrates a tension that may be intrinsic to the sort of purposive preemption analysis Meltzer favors. In a 5-4 opinion penned by Justice Alito (and joined by Justice Thomas), the Court determined that a New Hampshire design defect verdict against a drug manufacturer must be struck down under impossibility preemption doctrine. The plaintiff conceded – indeed argued – that there was no way to have marketed the drug that would have protected the defendant from the jury’s categorization of it as “unreasonably dangerous,” notwithstanding the FDA’s having approved it for sale. And yet the plaintiff asserted that New Hampshire had the prerogative to impose strict liability for injuries inflicted by unreasonably dangerous drugs regardless of whether those drugs are permissibly sold under state and federal law. Justice Alito reasoned that if a manufacturer’s only way to avoid liability was to withdraw the drug from the market, notwithstanding the federal government’s designation of it as safe enough to market, then impossibility preemption applied.

While Meltzer does offer a nice critique of “impossibility preemption” (as mentioned above), and therefore cannot be assumed to accept Justice Alito’s analysis, his approach is nonetheless unduly receptive to the defense-side argument. That is because, whether or not it is correct to regard Mutual’s predicament as one rising to the level of “impossibility” preemption, there is surely real substance in the drug company’s complaint that the federal and state law in this case are poorly integrated. More generally, drug manufacturers are at least somewhat justified in complaining that it is costly and confusing for them to adjust their products and practices to the products liability law of fifty different jurisdictions as well as the FDA and federal law more generally, and uniformity of drug safety was undoubtedly among the goals of Congress in enacting the drug-regulatory statutes it enacted. Meltzer’s obstacle preemption seems well situated to accommodate these arguments; indeed, obstacle preemption arguably would have provided a more comfortable foundation for Mutual’s argument.

And yet, the Court’s decision in Bartlett should, I believe, be regarded as unacceptable from a federalist point of view that takes the common law of torts seriously. An authentic form of preemption analysis in Bartlett would begin by recognizing that states have chosen very different points on the spectrum between negligence and strict liability for their design defect law, and that they have also differed greatly from one another on the question of whether to subject pharmaceutical companies to a more defendant-friendly regime than other manufacturers (as Justice Sotomayor noted, in her powerful dissent). It would then ask whether anything in text or history of the FDCA or the Hatch-Waxman Act manifests a purpose of eliminating or even constraining these state choices in products liability law. I have never seen any evidence of such a Congressional purpose. Under these circumstances, I believe, drug companies’ preemption arguments should fail.

Meltzer’s purposivism straddles these two approaches. By arguing that textualism is unacceptably and artificially narrow, he seems to open the way to what I have just depicted as a form of preemption analysis faithful to a federalist recognition of the states’ entitlement to design their own tort law. But Meltzer also welcomes a form of purposivism that invites the Justices to sympathize with defendants’ descriptions of the legal thicket that results from this system. When the Justices do so, they are understandably tempted to think it is their job to prune away the state law that renders the whole system so burdensome.

Perhaps we should not be surprised that purposivism, like textualism, can be used on either side in preemption analysis, and perhaps we should be pleased that it has a higher degree of transparency. For now, I think, we should recognize that the plasticity of purposivism is not an unmitigated good in preemption analysis; serious federalist commitments regarding the integrity of state tort law can disappear all too quickly through the methododological prism of either textualism or purposivism.

  1. See also Catherine M. Sharkey, Against Freewheeling Extratextual Obstacle Preemption: Is Justice Clarence Thomas the Lone Principled Federalist?, 5 N.Y.U. J.L. & Liberty 63, 68 (2010). []
  2. See Caleb Nelson, Preemption, 86 Va. L. Rev. 225 (2000). []
Cite as: Benjamin C. Zipursky, Federal Preemption and Products Liability, JOTWELL (March 11, 2014) (reviewing Daniel J. Meltzer, Preemption and Textualism, 112 Mich. L. Rev. 1 (2013)),