After a brief review of the basics of preemption, this Article considers the public policy underlying preemption of common law claims by federal agency regulations. Next, the Article examines the recent development of preemption law, following two major United States Supreme Court decisions on preemption and President Barack Obama's instructions on preemption to heads of federal regulatory agencies. Finally, the Article notes that when the tension between federal regulations and state tort claims does not rise to the level of preemption, state law provides courts with discretion to consider the manufacturer's compliance as satisfying the common law standard of reasonable care and establishing that the product is not defective. The Article concludes by expressing concern that the recent rage against preemption in favor of litigation may lead to less safe products and place the public at risk.
Introduction to the Symposium: Federal Preemption of State Tort Law: A Snapshot of the Ongoing Debate
Woodrow Wilson observed in 1908 that “[t]he question of the relation of the States to the federal government is the cardinal question of our constitutional system.” “It cannot . . . be settled,” he said, “by . . . one generation, because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question.” The relation of the states to the federal government has been a dominant constitutional issue throughout our history covering a wide range of issues--such as enumerated and implied powers, scope of the commerce clause, taxing and spending powers, enforcement of the Fourteenth Amendment, and criminal due process. In recent years none has been more important than federal preemption of state law by administrative agencies.. . .