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Greg Webb
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Pre-Emption Still Big Issue On Supreme Court Docket – Let the Playing Field in America be Level

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As the United States Supreme Court continues its term into October, the Roberts’ Court will continue to adhere to its affinity for issues that are close to the heart of the nation’s business community. The justices are expected to take on major cases involving federal pre-emption of state tort suits, environmental regulation, arbitration, workplace discrimination, anti-trust and pensions. The Court has already agreed to decide fifteen business-related cases, which is about thirty to forty percent of the docket. While the argument docket was missing some important, staple issues such as patent, securities and taxes, many of the issues that were missing last term have returned, such as environmental cases and antitrust.

The justices are also returning to the issue of pre-emption, which dominated the docket last term. The business sector is focused on this issue because it would give them a set of rules to play by. All eyes are on Wyeth v. Levine, No. 06-1249, in which Ms. Levine’s arm had to be amputated after complications following an injection of a Wyeth-manufactured drug. Wyeth is therefore asking the Court if federal law pre-empts a state law personal injury action against a drug manufacturer who adhered to all requirements made by the United States Food and Drug Administration. Altria v. Good, No. 07-562, is another case to watch. This case asks whether the Maine Unfair Trade Practices Act is pre-empted by the Federal Cigarette Labeling and Advertising Act in a class-action lawsuit brought by cigarette smokers who allege that Altria Group Inc. misrepresented its product as "light" and having "lowered tar and nicotine. www.law.com/jsp/article.jsp

Let’s hope the Court does not continue its perceived bent towards favoring Corporate America over everyday citizens’ rights; or its perceived bent towards taking important decision-making in litigated cases away from jurors, or regular Americans, like applying arbitrary limits on punitive damages as seen in the Exxon Valdez case. If an American jury can sentence a criminal defendant to death, it surely has the ability to fairly decide the amount of punitive damages a deserving defendant should receive. The past several months of the American, and world-wide, economic skid are perfect examples of how unchecked corporate “business practices” can have a detrimental impact on our economy and, perhaps, our justice system. All our citizens want, need, and demand, is a level, fair, playing field. Not one slanted to protect big business and CEO’s.