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

Essentially a Mother

This article connects the constitutional jurisprudence of the family to debates over reproductive technology and surrogacy. Despite the outpouring of literature on reproductive technologies, courts and scholars have paid little attention to the constitutional foundation of parental rights. Focusing on the structural/political function of parental rights, this article argues that a gestational mother has a constitutional claim to be recognized as a legal parent. The article first discusses the unwed father cases. Despite believing that natural sex differences justified distinctions in parental rights, the Supreme Court crafted a test giving men parental rights if they established relationships with their biological children. The article argues that the Court modeled this test on its view of the essential attributes of motherhood. The article also shows how this theoretical approach supports feminist claims for equal treatment despite biological difference, such as accommodation of pregnancy. Turning to current debates, the article focuses on divided motherhood: usually surrogacy contracts, but also embryo mix-ups at fertility clinics. Rather than following existing precedent on parental rights, the law of high-tech parenthood is tending sharply in the direction of denigrating gestation, defining parenthood exclusively in terms of genes or contracts. Conferring parental rights on gestational mothers would produce better outcomes and be more consistent with the best aspects of existing constitutional precedents