In our earlier post about Bruesewitz, our first takeaway was that “[e]xpress preemption has more friends on the Court than implied preemption.” That proposition was certainly on display today in Williamson v. Mazda, slip op. (U.S. Feb.23, 2011), where an implied preemption argument in the automotive context (whether tort law could demand a spider’s web of shoulder belts in multi-passenger minivans) garnered exactly zero votes.
Still, it could have been worse. There had been some speculation that Geier v. American Honda Motor Co., 529 U.S. 861 (2000), the first major implied preemption decision in the product liability field, might be overruled. that didn’t happen. To the contrary, just about the entire rationale of Geier was reaffirmed by seven of the eight participating justices (Thomas, of course, wants to abolish implied preemption (at least the “obstacle” kind) altogether). But while Geier lives, it’s more or less restricted to similar facts – where the agency was really concerned with preserving manufacturer choice, and said so both at the time of the action and before the Supreme Court. There just aren’t that many administrative brouhahas as big as the airbag controversy that spawned Geier.
That was always the Achilles heel of Geier, that the decision to emphasize the really good administrative facts about airbags – needed to win that case – potentially limited its scope. While a win is a win is a win, some prove more useful in subsequent litigation than others.
Another interesting note about Williamson – the supposed presumption against preemption was a no-show here as well, despite the 8-0 vote against preemption. So much for what the decision in Levine referred to as a “bedrock” preemption principle. Bedrock, meet alkahest.