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.
A Separation-of-Powers Defense of the "Presumption Against Preemption"
In Wyeth v. Levine, the United States Supreme Court revitalized the sometimes dormant “presumption against pre-emption” by declaring it one of two cornerstones of preemption jurisprudence. Under the presumption, the analysis of a claim that federal law preempts state law starts with “‘the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”’ Although the Court previously had instructed lower courts that the preemption analysis always begins with a “basic presumption against pre-emption,” the Court itself often has honored that mandate in the breach--when it has bothered to mention the presumption at all.. . .
Quasi-Preemption: Nervous Breakdown in Our Constitutional System
A half century ago, in The Relations Between State and Federal Law, Professor Henry Hart of Harvard defined the public need for harmonizing the legal dictates issuing from the two levels of sovereignty established in the United States Constitution:
The law which governs daily living in the United States is a single system of law: it speaks in relation to any particular question with only one ultimately authoritative voice, however difficult it may be on occasion to discern in advance which of two or more conflicting voices really carries authority. In the long run and in the large, this must be so. People repeatedly subjected, like Pavlov's dogs, to two or more inconsistent sets of directions, without means of resolving the inconsistencies, could not fail in the end to react as the dogs did. The society, collectively, would suffer a nervous breakdown.. . .
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.. . .
Combating Antimicrobial Resistance: Regulatory Strategies and Institutional Capacity
Amnesia is a common, important, but rarely noted side effect of antibiotics. Apart from medical historians, few recall the severe morbidity and mortality once associated with acute bacterial infection. However, decades of antibiotic overuse and misuse have compromised the long-term availability and efficacy of these life-saving therapies. If designed and implemented appropriately, regulation can reduce the risk of bacterial infection, reserve antibiotics for circumstances where they are necessary, and rationalize the use of the most powerful agents. Regulation of antibiotic resistance can be justified, and should be guided, by both efficiency and fairness. A range of regulatory options are available--some information-based, some incentive-based, some command-and-control--each of which has indications, strengths, and weaknesses. A desired set of regulatory strategies must then be matched with the appropriate legal and regulatory institutions. A renewed focus on regulatory and institutional design has significant potential to reduce antibiotic-resistant bacterial infections and increase the effective life of existing and new antibiotics.
Doctors as Bankers: Evidence from Fertility Markets
In a variety of medical contexts, doctors play a prominent role as bankers, lending directly to patients or arranging for patients to obtain loans from third-party lenders. I offer evidence of this activity from fertility markets based on an empirical study of virtually every fertility clinic's Web site in the United States and on interviews with key market participants. I find that doctors play an important role in patients' decisions about credit, discussing credit with patients, and even recommending and promoting specific lenders to patients while excluding consideration of other potential lenders. Despite the prevalence of this conduct, the law generally does not regulate doctors as bankers. Patients largely are left unprotected by current regulations, but they face significant problems when doctors act as bankers. Patients, vulnerable to their physicians' suggestions, often uncritically accept financial advice from their doctors. Instead of shopping for the best loans, they take the loans their doctors select for them. But, doctors face a conflict of interest when choosing which lender to recommend because different lenders charge physicians different amounts when patients pay for services with loans. Also, patients often are left confused when doctors present piecemeal information about lenders, and patients end up taking out loans with unfavorable terms.
In light of these problems, I offer a potential regulatory framework to regulate doctors acting as bankers. I suggest that regulations should require doctors to disclose the basic loan information that the Truth in Lending Act currently requires lenders to disclose. Moreover, policy makers should require physicians to disclose the financial arrangement between themselves and the lenders they recommend and, if they recommend lenders, to recommend to patients at least three potential lenders to encourage price shopping.
Governing the Presidential Nomination Commons
States jockeying to hold primaries and caucuses as early as possible has become the central theme of the presidential primary system. While the trend of racing to vote is not new, it has increased alarmingly. In 2008, more than half the states held contests by the first week of February. This free-for-all hurts the democratic process by encouraging uninformed voting, emphasizing the role of money in campaigns, and pressing candidates to rely on sound-bite campaigning. Because the presidential nomination is one of the most important decisions left to voters in the United States, this problem is well-recognized. It is also widely misunderstood. This Article casts the problem in a different light, demonstrating that the front-loading of the nomination process is a classic tragedy of the commons. Recognizing the problem as a commons dilemma provides a powerful explanation for the trend towards earlier primaries and, more importantly, provides insights into how best to reform the nomination system.
"Undead" Wartime Cases: Stare Decisis and the Lessons of History
References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration's reliance on World War II-era decisions --Ex parte Quirin, In re Yamashita, Hirota v. MacArthur, and Johnson v. Eisentrager--opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by Executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts--none of which should be repeated. But what does it really mean to invoke the lessons of history? Is it merely a rhetorical device or should it have some role in determining the stare decisis effect of these old wartime cases? The fact that each of the four cases cited by the Bush Administration has since been set aside by the United States Supreme Court raises questions about whether stare decisis ever applied to them at all. Can the lessons of history answer those questions?
This Article explores the potential legal meanings of the “lessons of history.” It distinguishes and weighs a number of possible models for how history might be used: (1) history as facts complicating or undermining prior decisions; (2) history as precedent-replacement, with the judgments of Congress, the Executive, or others taking the place of that of judges; and (3) history as a vehicle for constitutional principles, like a fear of Executive aggrandizement in wartime or a belief that “the Constitution is not a suicide pact.” Using the four key cases here as examples --Quirin, Yamashita, Hirota, and Eisentrager--the Article examines the benefits and pitfalls of allowing courts to engage in each of these types of analysis. The result is a clearer understanding not only of how history should affect the fate of old wartime cases, but of the roles history can play more generally.
Muddy Waters: The Supreme Court and the Clear Statement Rule for Spending Clause Legislation
The vital role of Spending Clause legislation in the operation of our government flies below the popular radar. Not many people realize that programs like Social Security, special education, and the current economic stimulus efforts take the form of laws exercising Congress's power under the Spending Clause of the Constitution. Spending Clause statutes exercise this power by imposing conditions on the funding recipients. But this source of expansive federal power is under pressure. The United States Supreme Court's conservative members have developed and begun to use more aggressively a clear statement rule of interpretation that, by placing strict requirements regarding the conditions contained in the statutory text, narrows the reach of Spending Clause legislation. This Article provides a comprehensive look at the development and use of the clear statement rule for federal spending legislation. It uses a single statutory scheme, the Individuals with Disabilities Education Act, as a lens to examine the extent of reliance on the rule, with particular focus on two recent cases. I review the federalism-based justifications for the rule and recommend a rule of appropriate scope and strength. The purpose of giving states notice of their essential obligations under spending legislation is served by a far less rigid version of the rule-- one that looks to the core obligations imposed by the statute, and recognizes notice drawn from legislative history, judicial interpretations, and administrative interpretations, in addition to statutory text.
Dynamic Federalism in Human Rights Treaty Implementation
In response to the growing academic and political movement that opposes the direct incorporation of treaties into domestic federal law, numerous scholars have proposed that states take on an increased role in the domestic interpretation and implementation of international human rights treaties. The focus of this scholarship to date has been to locate doctrinal gaps where state legislatures and courts may act without intruding in areas of traditionally federal jurisdiction. Thus far, however, little effort has been directed towards modeling an affirmative obligation for state participation in treaty implementation, despite the fact that state action is arguably required, both pragmatically and doctrinally, if the United States is to comply with its commitments under international human rights law. In this Article, I argue that reframing treaty implementation through a dynamic federalist model could be productive and even necessary, if the United States is going to meet its existing international obligations. As an example, I discuss the ongoing litigation over the United States' failure to honor its obligations under the Vienna Convention on Consular Relations (VCCR). Federal actors have relied on federalism concerns to avoid forcing states to remedy violations of Convention rights, thus leaving the question of whether the United States will reach compliance entirely in the hands of the states, which have generally been slow to take up the call. Drawing on a model proposed by Justice Breyer, I contend that adopting a dynamic federalist model to implement and enforce the VCCR could help to move beyond this impasse, and perhaps more importantly, could help realize the benefits of federalism within the context of human rights treaty implementation.