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

\u3ci\u3ePLIVA v. Mensing\u3c/i\u3e and Its Implications

The U.S. Supreme Court ruling in PLIVA Inc. v. Mensing will immunize generic drug manufacturers facing failure-to-warn claims from state-law liability, and may also have implications for preemption jurisprudence more generally, says attorney Brian Wolfman and co-author Dena Feldman in this BNA Insight. The authors analyze the ruling, and offer their views on the questions that PLIVA raises about the ongoing vitality of the presumption against preemption, the standard for determining ‘‘impossibility’’ preemption, and the propriety of deference to an agency’s views on preemption

Administrative Balance

Two of the most discussed administrative-law theories in contemporary discussion are executive preemption and big waiver. Executive preemption is the idea that agency regulations preempt state law by extension of the federal statutes the agencies are charged with enforcing. Big waiver is the idea that Congress delegates, to administrative agencies, the power to waive statutory provisions. The constitutional questions raised by executive preemption and big waiver can be put in the following terms. Executive preemption raises constitutional issues as regulatory agencies go farther and farther away from the “clear statement” of a given statute. Thus, one wonders whether agencies are turning themselves into an unconstitutional lawmaking body. Big waiver also raises constitutional issues. To some, it inverts the traditional approach to delegation and allows regulatory agencies to, in part, cancel laws that Congress passed. Executive preemption and big waiver currently constitute two separate theories of administrative law. This paper instead argues that these theories should be thought of in tandem. Executive preemption takes rights away from the states and big waiver gives rights back. As such, these tools allow agencies to balance federalism concerns in our present era of legislative gridlock

Preempting Unintended Consequences

Sommer offers some insights on preemption. The case for preemption is that there is an inherent logic and consistency in having litigation involving nationally traded securities resolved in a single forum

Endogenous Preemption on Both Sides of a Market

We study a market in which both buyers and sellers can decide to preempt and set their quantities before market clearing.Will this lead to preemption on both sides of the market, only one side of the market, or to no preemption at all?We find that preemption tends to be asymmetric in the sense that it is restricted to only one side of the market (buyers or sellers).preemption;endogenous timing

Preemption of Local Gun Laws: Questions and Answers

Questions and answers about the preemption of local gun laws by state law. Includes a definition of preemption and a discussion of how local gun laws are preempted

Discovering “Immployment” Law: The Constitutionality of Subfederal Immigration Regulation at Work

[Excerpt] This Article develops two general preemption frameworks that feature federal employment law. It first devises and applies an implied-preemption analysis of subfederal employer-sanctions laws based on the preemptive force of FLSA and Title VII. In doing so, this Article reveals that the four subfederal employer-sanctions laws that have produced conflicting court decisions are unconstitutional because they stand as obstacles to fundamental policies underlying FLSA and Title VII. Specifically, these four subfederal laws, along with other subfederal laws that share their qualities, conflict with core federal employment policy goals of protecting employees from employment discrimination and encouraging valid employee-initiated complaints from marginalized workers for the benefit of employees more broadly. Second, this Article develops a hybrid preemption framework that simultaneously considers the policy goals of federal immigration law and federal employment law. This new hybrid framework highlights an additional theory for preemption of these subfederal employer-sanctions laws. This Article’s analytical focus on legal theories for preemption of subfederal employer-sanctions also indirectly exposes a number of policy tensions between workplace-based immigration regulation and federal workplace protections more generally

City Rights in an Era of Preemption: A State-by-State Analysis

In a new report, NLC finds that states limit city power through preemption in a number of policy areas, ranging from labor protections to taxing authority.Preemption is the use of state law to nullify a municipal ordinance or authority. In some cases, preemption can lead to improved policy statewide. However, preemption that prevents cities from expanding rights, building stronger economies, and promoting innovation can be counterproductive when decision-making is divorced from the core wants and needs of community members

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

Preemption of Common Law Claims and the Prospect for FIFRA: Justice Stevens Puts the Genie Back in the Bottle

In the upcoming Term, the Supreme Court will consider a case raising the question whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts state tort law, or only state positive law. FIFRA, under which the Environmental Protection Agency regulates pesticide labels, has an express preemption clause and clearly preempts state positive law on labeling. The question presented is whether and to what extent it also preempts state tort law, particularly claims for failure to warn. The Court\u27s precedent on preemption of state tort law is erratic, but for some reason, the pro-preemption view has been much more popular with lower courts. The view that FIFRA broadly preempted state tort law was unanimous for several years, until the EPA filed an amicus brief in a California case arguing against preemption. That brief was rejected in most courts but accepted in Montana and Oregon. Under President Bush, however, the EPA reversed its preemption and now argues in favor of preemption - which in practice means near-complete immunity for pesticide manufacturers against claims by consumers or bystanders. This paper argues that the Supreme Court should hold that even though FIFRA preempts states from passing laws about what should be on a pesticide label, FIFRA does not preempt tort claims for failure to warn about the dangers of the pesticide. In doing so, the Court should clarify the operation of various presumptions it is adopted for when to find state law preempted by a federal statute