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

The Flight From Judgment: Reflections on Benjamin Barton’s An Empirical Study of Supreme Court Justice Pre-Appointment Experience

Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court\u27s failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices

The Flight From Judgment

In their book, Practical Wisdom: The Right Way to Do the Right Thing, Barry Schwartz and Kenneth Sharpe highlight the task of sentencing a convicted criminal as quintessentially calling for practical wisdom. Wisdom, they argue, is not a transcendent state to be achieved by mystical means but a skill that must be learned and improved by practice, trial, and error. It is grounded in empathy, which is the cognitive ability “to imagine what someone else is thinking and feeling.” A person’s capacity for wisdom can be stunted by rote adherence to inflexible rules or by carrots and sticks that replace good character with a reward system. Professor Benjamin Barton’s new Article argues that the rarified and insular biographies of the current justices of the Supreme Court are ill-suited for developing practical wisdom

The Flight From Judgment

In their book, Practical Wisdom: The Right Way to Do the Right Thing, Barry Schwartz and Kenneth Sharpe highlight the task of sentencing a convicted criminal as quintessentially calling for practical wisdom. Wisdom, they argue, is not a transcendent state to be achieved by mystical means but a skill that must be learned and improved by practice, trial, and error. It is grounded in empathy, which is the cognitive ability “to imagine what someone else is thinking and feeling.” A person’s capacity for wisdom can be stunted by rote adherence to inflexible rules or by carrots and sticks that replace good character with a reward system. Professor Benjamin Barton’s new Article argues that the rarified and insular biographies of the current justices of the Supreme Court are ill-suited for developing practical wisdom

In Defense of the Substance-Procedure Dichotomy

John Hart famously observed, We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure,” but for most of Erie’s history, the Supreme Court has answered the question “Does this state law govern in federal court?” with a “yes” or a “no.” Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed Martin and the dissenting opinion in Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for themselves the prerogative to fashion law that purportedly accommodates the interests of both sovereigns. With the cover of an intellectual critique of the substance–procedure dichotomy, the Court has thus embarked on a new phase of Erie doctrine, a phase that replaces “yes” or “no” with “Let’s see what we can work out.” This Article adds a new level of critique to the chorus of criticism that has already been directed at these opinions. It argues that the new enterprise and its blurring of the substance–procedure dichotomy are based on a misguided aspiration to accommodate state substantive policies at the expense of federal procedure. Descriptively, in order to have a dichotomy, it is necessary to have two poles. This Article therefore demonstrates that the distinction between substance and procedure is appropriately represented by a single-dimensional spectrum. Part of what the Court has done wrong is to ignore this linear relationship by insisting, for example, in Semtekthat res judicata is “too substantive” to be addressed in the Federal Rules yet procedural enough to be governed by federal common law under the Rules of Decision Act. In addition, given the linearity of substance and procedure, one could imagine the distinction either as a dichotomy of black and white, with every legal rule falling into one category or the other, or as a spectrum of gray, with many or even most legal rules falling in the mushy middle. Descriptively, of course, the latter view is more accurate. This Article argues, however, that the Court should nevertheless classify each legal rule as black or white, rather than try to accommodate both its procedural and its substantive aspects. This Article offers two reasons for preferring the black–white approach. First, the governing statutes contemplate a dichotomy between substance and procedure, and the Court is not authorized to use the ambiguity in that distinction to replace the statutory scheme with its own discretionary treatment of state law. Second, returning to the black–white approach would promote democratic transparency in the states. Specifically, in addition to traditional Erie concerns about judicial lawmaking, Congress has set a policy of establishing a uniform body of transsubstantive procedural law. State legislators know this, and there is nothing wrong with federal courts expecting them to act accordingly. If they, as Representative Dingell famously offered, prefer to manipulate procedure in order to undermine the substantive rights they purport to have created, the threat of fixed procedures in diversity could and should restrain them. Too often, the Supreme Court treats legislative enactments as fixed, so that the game begins when the litigants start their forum shopping. The game begins earlier, in the legislature, and the nascent effort to accommodate state law through Erie doctrine creates the wrong incentives for that game

The Wages of Genetic Entitlement: The Good, the Bad, and the Ugly in the Rape Survivor Child Custody Act

This Essay analyzes flaws and assumptions in the recently enacted Rape Survivor Child Custody Act. The RSCCA offers a window into the problems with defining parenthood in terms of genes instead of caretaking relationships, which is what led to the problem of rapists being able to claim parental rights in the first place. Rather than address that underlying defect in family law, the statute attempts a solution that might work if all rapists were strangers, all rapists were men, and all rape victims were women, but glosses over complicated problems of violence and coercion in relationships. Despite this failure to grapple with hard cases, the RSCCA helps us see how the biological processes of reproduction are necessarily intertwined with the definition of legal parenthood