The Constitution’s federalist structures protect states’ sovereignty but also create a powerful federal government that can preempt and thereby displace the authority of state and local governments and courts to respond to a social challenge. Despite this preemptive power, Congress and agencies have seldom preempted state power. Instead, they typically have embraced concurrent, overlapping power. Recent legislative, agency, and court actions, however, reveal a newly aggressive use of federal preemption, sometimes even preempting more protective state law. Preemption choice fundamentally involves issues of institutional choice and regulatory design: should federal actors displace or work in conjunction with other legal institutions? This book moves logically through each preemption choice step, ranging from underlying theory to constitutional history, to preemption doctrine, to assessment of when preemptive regimes make sense and when state regulation and common law should retain latitude for dynamism and innovation.
For the last decade, Americans’ right to sue manufacturers whose products cause them injury or harm has been under attack. It’s been a quiet war, but it has been fierce, raging simultaneously in the courts, federal regulatory agencies, and Congress. The conflict is over what is called agency preemption, and the fundamental question is whether and under what circumstances regulations by federal agencies may preempt – which is to say, trump – state laws allowing victims to bring suit against companies whose actions cause them harm. Read about Thomas McGarity's book on the topic.