What Does Obama's Election Mean For Preemption?

Brooks Schuelke

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We've spent the last month talking about preemption and earlier this week the Supreme Court heard the critical case of Wyeth v Levine, but was it all for nought? Is it possible that an Obama administration combined with a Democratically controlled Congress will simply pass legislation that will reverse any preemption decisions? That's certainly the thought being bantered about in the blogosphere.

The noted bloggers at Pharmalot stated earlier this week:

This point has been mentioned before, but not very prominently, in the discussions leading up to today’s US Supreme Court review of the Wyeth v. Levine preemption case. As The Legal Times notes, a Democrat in the White House and a Democratic Congress could erase any preemption protection companies have won in the last eight years. Bills are already before Congress to do just that.

They hypothesize that the American Association of Justice's release of its study on preemption (which we covered here) and the release of internal FDA documents criticizing preemption (covered here ) were part of a plan to help pass that proposed legislation.

I hope they're right. I think my views on preemption are well known, and I hope we do get some positive result on that front from an Obama win.

I have also written a post discussing my views on Obama's effect on tort reform, in general, that readers might find interesting.