Preemption Paradox

For many Supreme Court observers, 2008 dawned with hope ' perhaps not HOPE on the order of Grant Park on election night, but hope nevertheless. Four separate preemption cases were among the ranks of the Court's docket. Collectively, they offered an opportunity for the Court to take a significant step toward providing much-needed clarity in connection with its preemption jurisprudence ' or so it seemed. Because Chief Justice Roberts recused himself, Warner-Lambert Co., LLC v. Kent resulted in a 4 to 4 (non)decision that produced no published opinion. 128 S. Ct. 1168 (2008). Oral argument in Wyeth v. Levine, Docket No. 06-1249, did not take place until Nov. 3, 2008, and the Court did not issue a decision until March 4 of this year. That left Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008) and Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008). Both decisions assessed express preemption provisions and helped to fill voids created by highly fractured antecedent Supreme Court decisions ' Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) in the case of Riegel and Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) in the case of Altria Group. However, Riegel and Altria Group are difficult to reconcile in fundamental ways, and, consequently, they did little to provide meaningful guidance to litigants and lower courts.