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

Similarity or Difference as a Basis for Justice: Must Animals Be Like Humans to Be Legally Protected from Humans?

Justice may not require that animals be exactly the same as humans or that they have rights exactly coterminous with the rights of humans, but justice would require that animals receive protection in ways that match up with those similarities they share with humans that are characteristics considered essential to the understanding of what it means to be human. Stated generally, the argument is that if animals are similar to humans as to capacities and characteristics of humans that define humans, then animals should receive protections equivalent to the protections of humans because a just society treats like entities alike

The Revised Model State Administrative Procedure Act—Reform or Retrogression?

In this contribution, we deal with the deterministic dominance of the probability moments of stochastic processes. More precisely, given a positive stochastic process, we propose to dominate its probability moment sequence by the trajectory of appropriate lower and upper dominating deterministic processes. The analysis of the behavior of the original stochastic process is then transferred to the stability analysis of the deterministic dominating processes. The result is applied to a nonstationary auto-regressive process that appears in the system identification literature.