November 2010

1. What Question for Preemption Doctrine Does Williamson Pose?

The overarching - and unresolved - preemption question that emerged from the pack on Wednesday was whether and when an agency's decision to give manufacturers a choice between two or more options means that the agency intended to preserve manufacturers' freedom of choice to the extent that manufacturers had immunity from state tort claims challenging whatever choice the manufacturers ended up making. On the other hand, when does an agency's decision to establish minimum standards in the form of options not signal its intent to preempt subsequent state tort claims arguing that manufacturers made the unreasonable choice among those options?

2. The Facts

The potentially preemptive federal law here is a 1989 regulation that the National Highway Traffic Safety Administration promulgated as a "minimum standard" pursuant to the National Traffic and Motor Vehicle Safety Act of 1966. Instead of setting a single standard, the NHTSA gave car manufacturers two options for installing seatbelts in certain specified positions: The first option was to install a lap-only belt, and the second was to install a full lap and shoulder belt assembly.

Mazda chose to put only a lap belt in the minivan seat occupied by Thanh Williamson, who died of internal injuries after jackknifing over the belt during a head-on collision. Her husband and daughter - who were in the car in seats that had shoulder belts -survived and sued Mazda on her behalf. They asserted that Mazda should have installed the shoulder/lap belt combination, primarily alleging defective design but attaching associated claims, such as failure to warn.

Martin Buchanan, a San Diego attorney, argued for the Petitioners, the Williamsons. William Jay argued on behalf of the U.S. Solicitor General as amicus curiae in support of the Williamsons. Gregory G. Garre, a partner at Latham & Watkins, argued for Mazda, the Respondent.

3. What Type of Preemption Is Mazda Arguing Applies Here?

Preemption doctrine is generally broken into two categories: express and implied. Mazda cannot argue that the Motor Vehicle Safety Act or its regulations expressly preempt the Williamsons' litigation. While the Act has an express preemption clause, it also contains a strong so-called savings clause that preserves state tort claims: "Compliance with a motor vehicle safety standard prescribed under this chapter," Congress mandated, "does not exempt a person from liability at common law."

Seeking to go beyond the reach of that savings clause, Mazda therefore is relying on implied preemption doctrine to argue that the Williamsons' tort claim is barred. Among the various types of implied preemption, Mazda is relying on the strand known as "obstacle preemption." Obstacle preemption lets federal statutes and regulations trump state or local acts that obstruct the accomplishment of important federal objectives. This strand led Honda to victory in the Supreme Court decision most relevant here, Geier v. American Honda Motor Company, as discussed more below.

4. Into the Oral Argument Weeds

The broad question outlined above provoked the Justices to tussle with the several interrelated questions.

By Alex Kreit, assistant professor of law and director of the Center for Law and Social Justice at Thomas Jefferson School of Law in San Diego. Kreit is author of the ACS Issue Brief, "Toward a Public Health Approach to Drug Policy."

Now that California's Proposition 19, which would have legalized marijuana, has gone down in defeat, those who follow drug policy issues are beginning to reflect on why the initiative failed to pass and what the result might mean for marijuana policy going forward.

As someone who researches and writes about controlled substances laws, I'm happy to have the opportunity to share a few preliminary thoughts of my own.

With regard to why Proposition 19 faltered, there are a number of individual factors that likely cost the measure a few percentage points of support, such as insufficient funds for a statewide television ad campaign and running the measure in a midterm where youth turnout was much lower than in a presidential cycle. But, it is also important to keep in mind that passage was always something of a long shot.

Although polling showed the initiative with support in the low 50-percent range for much of the campaign, conventional wisdom holds that measures polling below 60 percent going into a campaign are unlikely to pass. This is because most ballot initiatives tend to lose support over time, particularly in the home stretch of the campaign. Simply put, it's easier to convince someone to vote against something than for it. A vote against a ballot measure preserves the status quo. As a result, sowing one or two doubts about an initiative in a voter's mind is usually enough to get that person to oppose it, even if he or she is generally supportive of the aims of the initiative.

The "No on Prop.19" campaign smartly played on this dynamic. Their campaign slogan, for example, did not even mention marijuana legalization but instead called on voters to reject the initiative because it was "a jumbled legal nightmare" regardless of their views on legalization. The Chamber of Commerce's advertisement against the measure likewise ominously warned voters that "Prop. 19 would do more than simply legalize marijuana," and focused on the supposed adverse effects of an employment provision contained in the initiative.