Back in the sixties, those days of the Cold War, flower power, and the creation of strict liability, the Cuban revolutionary Che Guevara was credited with the phrase “create two, three, many Vietnams.” Che was not, as far as we know, a plaintiffs’ lawyer. In Florida, however, Che’s philosophy seems alive and well in the
OK class, for today’s lesson, assume you are a major, sophisticated drug company. That means you have to have at least one (actually, a bunch) FDA-approved drug that’s safe and effective for its indicated use. So assume that, too – let’s say your drug alleviates muscular inflammation from over-exercise.
There being at least some reality
At bottom, preemption is about power. Stripped to its essentials, any federal preemption argument amounts to the proposition that “supreme” federal power requires/encourages me/my client to do what we’re doing. Thus, your lesser (state) power can’t force me/my client to do something else or punish me/my client for doing what federal power demands. In our