Tomorrow the Supreme Court will hear arguments in Kurns v. Railroad Friction Products Corp., No. 10-879, on whether the Locomotive Inspection Act preempts state-law tort claims relating to locomotive repairs. I had the honor of previewing the case at SCOTUS Blog today, which you can find here. Attorney David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC will argue the case on behalf of Gloria Kurns, and Jonathan D. Hacker of O’Melveny & Myers LLP will argue on behalf of Railroad Friction Products Corporation, et al.

In my SCOTUS Blog post, I go through the arguments raised in the merits briefs. But I wanted to add a few additional thoughts on the case. First, I always find it enjoyable to compare the briefs filed in a given case before the lower court to the briefs filed in the U.S. Supreme Court. Often times, I find that you can really see how the issue framing has changed after the Circuit Court decision comes out. This is especially true when there is a change of counsel in the Supreme Court case and that attorney has extensive Supreme Court experience. That happened in this case. The SCOTUS briefs hardly resemble the briefs below.

Second, predictability in the law is a valuable trait, especially in the corporate world where a businesses’ assessment of risk will often rely on what the law supposedly says today, or, even a guided guess of what it may say tomorrow. Bright-line rules are esteemed primarily because they provide that predictability. So if you are a believer of bright-line rules, the Court’s more recent attempts to define when the Congress impliedly preempts state law leaves much to be desired. Last term in a series of three cases, the Court’s only clear message was that it would decide federal preemption claims on a case-by-case analysis of the statutory language and purpose at issue rather than on broad policy grounds. See Bruesewitz v. Wyeth LLC, No. 09-152; Williamson v. Mazda Motor of Am., Inc., No. 08-1314; Pliva, Inc. v. Mensing, No. 09-993.

The upshot of the case-by-case approach is that it provides Fantasy SCOTUS players a true chance to test their predictive abilities!

The downside is largely the same; no one knows how the Court will come out on federal preemption cases.

Added to that are the layers of policy between the layers of policy. The political winners of federal preemption cases are hard to quantify. For example, if Kurns prevails it will be a win for state rights, which is historically a win for conservatives. But it will also mean a ruling against big business, and a ruling that allows for more trial litigation—hardly a worthy goal for the conservative Justices.

Because preemption oftentimes pits conservative Justices against conservative policy preferences, and vice versa for liberal Justices, this might be the reason why the Court pin balls back and forth on preemption cases.

Or maybe not. Two Supreme Court terms a trend does not always make.

Third, this case is a difficult call precisely because there is no real policy winner. And predicting the outcome is not helped by the fact that both sides are ably represented by long-time members of the Supreme Court bar.

So what does all of this suggest? The outcome, I believe, will depend on whether the Court feels bound to apply Napier even though that case was decided in an era when the doctrine of field preemption was conceptually different than it is today. If the Court employs the case-by-case approach petitioner will win; if broad policy considerations win out, respondents will prevail.  

If you’re a betting man this is a push—with a tie leaning to the side with the Solicitor General’s support. But ask me again after the argument!