Introduction: New Federalism

Several intriguing and difficult questions about the federal-state allocation of power remain open even as we apparently near the end of the particular Rehnquist Court’s federalism initiative. New Justices on the Court and new initiatives by federal and state elected officials in the future will reshape this debate in ways that are perhaps unexpected and currently unforeseen. That the essays here are topically and methodologically diverse exemplifies the variety of this ongoing debate, which promises to continue throughout the next decade and beyond

Justice Harry Blackmun and the Phenomenon of Judicial Preference Change

We are fond of putting our judges into neat adjectival boxes, particularly when they sit on the Supreme Court. These typologies often reflect perceived attitudinal or ideological preferences; some Justices are called liberal or conservative or moderate, or occasionally some hyphenated combination thereof. Or the labels might seek to capture variations in jurisprudential philosophy or method, such as formalist, pragmatist, originalist, textualist, or minimalist. No Justice is immune from this classification game, and the subject of this symposium is an apt example. From the moment of his nomination by President Nixon in 1970, Harry A. Blackmun attracted a bevy of predictive characterizations, many of which now seem almost quaint in their wrong-headedness. Contemporary court-watchers described the new Justice as consistently ... on the conservative side of the issues, a jurisprudential twin of Chief Justice Warren Burger, and, in the ultimate compound taxonomy, a White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs.\u2

The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decision-Making

This Essay reports the results of an interdisciplinary project comparing political science and legal approaches to forecasting Supreme Court decisions. For every argued case during the 2002 Term, we obtained predictions of the outcome prior to oral argument using two methods—one a statistical model that relies on general case characteristics, and the other a set of independent predictions by legal specialists. The basic result is that the statistical model did better than the legal experts in forecasting the outcomes of the Term’s cases: The model predicted 75% of the Court’s affirm/reverse results correctly, while the experts collectively got 59.1% right. These results are notable, given that the statistical model disregards information about the specific law or facts of the cases. The model’s relative success was due in large part to its ability to predict more accurately the important votes of the moderate Justices (Kennedy and O’Connor) at the center of the current Court. The legal experts, by contrast, did best at predicting the votes of the more ideologically extreme Justices, but had difficulty predicting the centrist Justices. The relative success of the two methods also varied by issue area, with the statistical model doing particularly well in forecasting “economic activity” cases, while the experts did comparatively better in the “judicial power” cases. In addition to reporting the results in detail, the Essay explains the differing methods of prediction used and explores the implications of the findings for assessing and understanding Supreme Court decision-making.Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/116230/1/columbia04.pd

Preemption of Vaccine Injury Lawsuits Upheld

Few issues of medical science and tort liability have riled public disagreement like that of vaccine safety in the past two decades. Despite an overwhelming scientific and medical consensus that common childhood vaccines are safe and effective, and that their public health benefits far outweigh their incremental risks, many members of the public and the news media have perpetuated the notion that various dire diseases – most notably autism – are caused by vaccines. This skepticism has produced both public health and litigation system consequences. In certain localities in the United States, parental objections to vaccination have resulted in a high proportion of children forgoing immunization. Some of these areas have seen a resurgence of illnesses and deaths caused by measles, mumps, and pertussis (whooping cough) – ailments which Paul Offit has called the “diseases of [our] grandparents” since they had been successfully eradicated in the United States for decades. Less poignant than these public health tragedies, but highly relevant to the continued availability of vaccines on the U.S. market, has been a surge of state tort lawsuits over vaccine safety. Although high-profile appellate courts in both the U.S. and U.K. have resolutely rejected unsubstantiated claims of vaccine dangers, individual state trial court litigation has continued to proliferate. Last month, the U.S. Supreme Court entered the fray for the first time in years, ruling definitively that a certain type of vaccine design defect lawsuit was preempted by federal law. By a 6-2 ruling in the case of Bruesewitz v. Wyeth, the Court held that the National Childhood Vaccine Injury Act (NCVIA) of 1986 completely preempts state law design defect claims against makers of vaccines covered by the Act. The NCVIA establishes a no-fault compensation system administered by the U.S. Court of Claims for claims arising from a variety of side effects associated with childhood vaccines. The Act relieves claimants of the burden of proving causation, but limits their recovery to a schedule of damages set by administrative rule. Writing for the Court in Bruesewitz, Justice Antonin Scalia held that the NCVIA’s express preemption provision trumps the plaintiffs’ state law defective design suit alleging that the diphtheria, tetanus, and pertussis (DTP) vaccine had caused their young daughter seizures and permanent injury. The preemption provision forbids any vaccine lawsuit where “the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.” The Court reasoned that this language “preempts all design-defect claims . . . brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects.” Justices Kennedy, Thomas, Breyer, Alito and Chief Justice Roberts joined the Court’s majority. Justices Sotomayor and Ginsburg dissented on the grounds that the statutory term “unavoidable” meant unavoidable even with a significant product redesign. Justice Kagan recused herself. The Court’s decision in Bruesewitz has important implications both for preemption jurisprudence and vaccine public policy. On the first point, this case is the third one in three years to consider whether a federal regime for regulating therapeutic products preempts state lawsuits over those same products. In the case of vaccines and medical devices, the Court held in Riegel v. Medtronic that where Congress includes an express preemption provision in a regulatory statute, the Court will read that clause fairly broadly to preempt state tort litigation. But in Wyeth v. Levine the Court rejected an implied preemption claim involving prescription drugs that the FDA initially supported and drug manufacturers pressed ardently. The different results in these cases suggest that, at least in the medical products area, the touchstone for the Court’s preemption inquiry will be the existence of an express statutory preemption provision. The Court’s Bruesewitz opinion also illustrates a judicial sensitivity to the economics of vaccine production and to the public health imperatives of ensuring adequate vaccine supply and high immunization rates. Justice Scalia, the Court’s most ardent textualist, begins his opinion for the Court not with a close textual exegesis (though he would turn to that soon enough) but with a nuanced history of the tort liability explosion and the resulting crisis of limited vaccine availability that led Congress to adopt the NCVIA. Scalia reads this history to indicate that Congress sought to “stabilize the vaccine market” and, to this end, provide “significant tort liability protections for vaccine manufacturers.” Scalia interprets the statutory preemption provision to further such goals. In a separate concurring opinion, Justice Breyer emphasizes more completely this public policy imperative. Breyer writes that the NCVIA’s central purpose was “to protect the lives of children” by ensuring widespread vaccine availability. Breyer gives great weight to the views of health experts and the Department of Health and Human Services (HHS) that a contrary result in this case would threaten this goal. In an era where courts are often pilloried for being tone-deaf to scientific nuance and expertise, Bruesewitz offers a contrary exemplar of a broad array of Justices effectively endorsing the consensus position of the public health and scientific establishments