We were accused — okay, okay; we were guilty — of being an “all preemption, all the time” blog in the days leading up to the Supreme Court’s decision in Wyeth v. Levine.

But those halcyon days are behind us.

We’re now half preemption, half the time.

It’s that time!

Here are two recent articles wrestling with preemption law as it stands today.

First, Richard Cupp, Jr., (Pepperdine) has posted to SSRN “Preemption’s Rise (and Bit of a Fall) as Products Liability Reform: Wyeth, Riegel, Altria, and the Restatement (Third)’s Prescription Product Design Defect Standard.” In the words of the abstract:

“This Article compares and contrasts the rocky reception the Restatement (Third) of Torts section 6(c)’s restrictive prescription product design standard has endured with the rise of an increasingly active judicial approach to preemption from the 1990s through the late 2000s. Preemption’s rise may have to some extent crested (at least for now) with Riegel v. Medtronic in 2008, and it showed signs of possible contraction (again, at least for now) with Wyeth v. Levine in 2009. The Article analyzes the effect of preemption’s rise in the 1990s and pre-Wyeth 2000s on developing a generally more restrictive approach to prescription product design defect claims, along with other prescription product defect claims. The article suggests that the restrictive tone of section 6(c) may have to some extent caught the ‘mood’ of courts regarding prescription product design liability, even if the specific details of the unfamiliar standard have not found much traction. Indeed, some of the rationales provided for section 6(c) overlap with some of the rationales the Supreme Court employed in the 1990s and 2000s to support its increasingly aggressive use of preemption analysis in prescription products cases. Thus, the article concludes that the currents underlying section 6(c)’s restrictive tone for prescription product design liability may have found a “back door” in Supreme Court rulings such as Daubert and Riegel, despite most courts’ and commentators’ refusal to provide “front door” acceptance of the Restatement (Third)’s prescription product design defect standard. Further, the article contemplates whether Wyeth may represent the start of a contraction in preemption doctrine or whether its significance will be more limited. “

Second, Sandra Zellmer (Nebraska) has published “Preemption By Stealth” in the Houston Law Review. But a miracle of modern technology makes that puppy available for you at SSRN here. Zellmer accuses the Roberts Court of a pro-business bent, but she published her article before Wyeth v. Levine came down. In any event, here’s the key snippet from her abstract:

“By focusing specifically on cases involving statutory savings clauses, this Article attempts to identify preemption patterns and principles from a discrete set of opinions issued by the Rehnquist and Roberts Courts through 2008. It undertakes a comparative analysis of case law in four areas: (1) the environment; (2) labor and employment; (3) products liability; and (4) agricultural practices. These four were chosen both because of the tremendous activity in these areas by all three branches of the federal government since the 1980s and because of their importance to federal–state relations. The analysis of key cases in these four areas indicates that, where Congress has included a savings clause in the allegedly preemptive federal statute, the Rehnquist Court was willing to allow some redress to injured persons, yet at the same time it paid little attention to savings clauses when it came to the preemption of protective state or local regulations. Where state or local regulations were challenged on preemption grounds, neither the statutory language nor the overarching congressional goals seemed to carry much weight. If we narrow the focus even further, and consider only the Roberts Court, a nascent trend in favor of business and against both state interests and injured persons alike is discernible in both tort and regulatory cases. The most significant tort case issued by the Roberts Court to date, Riegel v. Medtronic, Inc., indicates that the Court is taking an especially broad view of preemption clauses and a correspondingly dim view of savings clauses. It is too early to tell whether we might expect it to find preemption whenever business interests are affected, regardless of the context, but Riegel may be indicative of the future direction of the Roberts Court.”

Now that we’ve done our preemption duty, maybe we can go back to some unusual topics — like, say, Daubert or the learned intermediary doctrine.

(We’re just full of surprises.)