Why Preemption Proponents are Wrong

The basic idea of federal preemption is easily stated: It is a constitutionally mandated principle that demands that federal law trumps state law when the two conflict or in the rare instances when a federal law is so comprehensive that there’s no role left for state law to fill. But in practice, courts have often had difficulty applying the principle. For plaintiff lawyers, preemption is an ever-present worry. When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the defendant will probably assert that federal law preempts your client’s state law damages claim. You can expect this argument no matter how weak the federal regulatory scheme or how attenuated the connection between that scheme and the harms your client suffered or the state law duties under which your client seeks a remedy. But defendants’ and tort “reformers’” pro-preemption arguments do not reflect current preemption doctrine as established by the courts. A common—and false—argument for preemption, for example, is that state tort law necessarily interferes with federal regulatory objectives. Moreover, preemption of state tort law is a bad idea. Immunizing the makers of products that cause injury simply because, for instance, these products have been approved for marketing by a federal agency harms both the injured people and society generally

FDA Preemption of State Tort Law in Drug Regulation: Finding the Sweet Spot

The project of harmonizing tort law and regulatory law in the public interest-the sweet spot of my subtitle-is inherently fraught with difficulty. This, of course, is a very old problem for American law generally. Our administrative state began during the first decade of the Republic. Beacause energetic administration has always created risks of harm to persons and property, the potential for overlap and conflict with the hoary common law of torts. which likewise protects persons and property, has always been an inevitable consequence of regulatory statutes. Moreover, as Richard Nagareda explains, recent developments in both tort law and administrative regulation increasingly cast the two less as complementary regimes than as institutional rivals

Making the Most of United States v. Jones in a Surveillance Society: A Statutory Implementation of Mosaic Theory

article published in law journalIn the Supreme Court's recent decision in United States v. Jones, a majority of the Justices appeared to recognize that under some circumstances aggregation of information about an individual through governmental surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion sometimes called "mosaic theory"-could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements-the issue raised in Jonesbut also with respect to the government's increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This article provides, in the guise of a model statute, a means of doing so. More specifically, this article explains how proportionality reasoning and political process theory can provide concrete guidance for the courts and police in connection with physical and data surveillance

Preemption and Regulatory Failure

This symposium was convened to address the growing and seemingly conflicting jurisprudence governing federal preemption of state damage actions. One way to evaluate the evolution of preemption law is to examine it through the lens of litigation under the preemption provision of the 1976 Medical Device Amendments ( MDA ) to the federal Food, Drug, and Cosmetic Act - a provision that in many respects is typical of express preemption provisions in regulatory statutes and has spawned a high volume of litigation. The question raised in cases under the MDA is whether the Act\u27s preemption provision nullifies state damage actions based on personal injuries caused by medical devices that are defective, poorly designed, or promoted in ways that do not alert patients (and physicians) to the risks that attend their use. The answer to that question depends on how one reads the MDA preemption provision

Research and its Revelation: When Should Courts Compel Disclosure

The best hope for improving the resolution of disputes concerning disclosing research is for lawyers to present the research and litigation issues clearly and for courts to develop a keener sense for the area of expertise involved

Research and its Revelation: When Should Courts Compel Disclosure

The best hope for improving the resolution of disputes concerning disclosing research is for lawyers to present the research and litigation issues clearly and for courts to develop a keener sense for the area of expertise involved