American Enterprise Institute's Michael Greve on Wyeth v. Levine

by Brian Wolfman

Writing in National Review Online, American Enterprise Institute scholar Michael Greve has explained why he thinks the Supreme Court's recent no-preemption decision in Wyeth v. Levine fundamentally misunderstands principles of federalism and is a disaster for the economy. I thought it would be useful to post a view of preemption different from what is typically seen on these pages. The first paragraph of Greve's essay is set out below, followed by a link to the entire piece:

Not so long ago, the Roberts Court drew a torrent of commentary — most of it critical — about its supposed pro-business orientation. “Supreme Court, Inc.” was the title of an article by law professor Jeffrey Rosen in the New York Times Magazine. This year, with a heavily Democratic Congress relieving its pent-up demand for regulation, as well as a financial disaster supposedly caused by “deregulation” and a new administration with a declared intention to reconstruct the American economy, many expected a confrontation between populist politics and the Supreme Court’s insistence on a modicum of government restraint and reason. But the justices’ recent decision in Wyeth v. Levine suggests just the opposite. The Court’s doctrines on the once-arcane subject of “federal preemption” extend an open invitation to juries, state officials, and tort lawyers to help themselves to even more of the diminishing proceeds of America’s productive economy.

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