Editor’s Note: Following is the last of four posts focused on federal preemption issues and featuring CPR Member Scholars Thomas McGarity and William Buzbee. In December, both published books on the issue. (The first blog post in the series includes some background on the issue. The second discussed the very real impact the outcome of the debate has on individuals. The third looked at the prospects for progress on the issue under the Obama Administration.) McGarity’s book is The Preemption War: When Federal Bureaucracies Trump Local Juries. Buzbee’s is Preemption Choice: The Theory, Law, and Reality of Federalism’s Core Question, and features chapter contributions from 15 experts, including Buzbee and McGarity, as well as a number of other CPR Member Scholars. We asked Professors McGarity and Buzbee to discuss the books and the issue, and here’s the final installment of that conversation.
What did you learn about preemption issues from writing this book with so many distinguished experts in the field? Professor Buzbee: The process of creating a book and editing many of the nation’s leading regulatory and constitutional law experts as they developed their own chapters was a challenge, but a rewarding one. A benefit of this book is that it involves scholars from diverse backgrounds and affiliations. It involved numerous CPR scholars; CPR interactions are invariably stimulating and educational. But we also included chapters from former clerks for Supreme Court Justices from across the ideological spectrum, scholars who worked for Republican and Democratic administrations, scholars with private sector backgrounds, scholars who served in leading state government roles, and scholars affiliated with the American Constitution Society and the Federalist Society. Despite these diverse, impressive backgrounds, the conclusions and views ended up quite aligned. Contributors shared concern with overly aggressive assertion of federal preemption, saw preemption policy and case developments as breaks from precedent and constitutionally problematic, and virtually all authors shared concern that dysfunctional regulation that would result from overly aggressive preemption, especially risks of failure to update and improve regulation and the underlying products and risks subject to regulation. The recent aggressive assertions of preemptive power by the executive branch under the Bush Administration were a major break from precedent. Strongly preemptive regimes are favored by many business groups, but that does not translate into automatic support from scholars associated with more conservative justices or groups. One additional lesson was just how far actual policies and judicial results regarding preemption often are from claimed presumptions and rationales. One would think from policymakers’ and judges’ language that preemption would be rare and accepted only grudgingly, but this has not been true. Despite claimed solicitude for the sovereignty of states and a desire for effective and responsive regulation, actual preemption changes seem often to reflect an anti-regulatory animus that trumps other values and goals. The contributors to this book in a rigorous and balanced way explored both when preemptive action makes sense and when it is especially problematic. The balance of the authors’ backgrounds and chapters should make the book of interest across the ideological spectrum and to lawyers and scholars working on legislation, regulation, constitutional case law, and tort law. Professor McGarity: As one of the scholars who participated in your project, I wholeheartedly agree with your assessment of the results. I confess that I was more than a little surprised that scholars with such a wide variety of approaches and ideologies would wind up so closely aligned on the issue of federal preemption of state common law. We certainly disagreed about a lot of things, but this is one area in which scholars from all across the political and ideological spectrum can agree. My experience in writing The Preemption War was, of course, quite different, given that it was a one-person project (that, by the way, dominated my life for more than a year). So it was gratifying to find that where I came out on most of the important questions that arise in the ongoing preemption battles was where many more scholars whose work I respect and relied upon also came out. The big remaining question is whether the courts and policymakers in the new Administration and Congress are paying attention.