Federal Preemption
States' Powers, National Interests

When does federal law trump state law? The arcane topic of federal preemption has become the stuff of public debate and major news stories. The partisan lines are clearly drawn. On one side, consumer advocates, plaintiffs’ attorneys, and state officials argue that broad federal preemption claims interfere with the states’ historic police power to protect their citizens against corporate misconduct. On the other side, corporations and federal agencies maintain that preemption is a vital safeguard against unwarranted and inconsistent state interferences with the national economy and against aggressive trial lawyers and attorneys general.

Fierce struggles along these lines dominate the political debate, judicial decisions, and legal commentary in a wide range of regulatory arenas, from financial regulation to automobile safety; from clean air laws to the regulation of telecommunications, energy, and other network industries; from securities law to consumer products standards; from pharmaceutical drugs to pesticides to outboard motors. In all these areas, billions of dollars hang on regulatory nuances and arcane points of legal interpretation.

The preemption debate is also being waged in the shadow of broader, sometimes constitutional arguments concerning the role and utility of federalism and “states’ rights” in a modern, highly mobile, integrated economy. Legal scholars are sharply divided over both the substance of those arguments and the extent to which they should dominate economic considerations or statutory language.

What the preemption debate needs is an examination that reflects the delicate interplay between our constitutional structure and the details of specific regulations. In Federal Preemption: States’ Powers, National Interests, Richard A. Epstein and Michael S. Greve, two leading scholars in the field of preemption, have assembled an exceptional group of prominent legal scholars and practicing attorneys for a probing analysis and spirited discussion of these difficult issues.

The volume includes a preface by Kenneth W. Starr, dean of the Pepperdine University Law School and former solicitor general of the United States, and introductory and concluding essays by the editors. The essays are arranged in three parts.

In Part I, Viet Dinh and Stephen Gardbaum trace the antecedents of modern preemption law— respectively, the nineteenth-century understanding and the transition from the Lochner Court to the New Deal. The New Deal largely settled the constitutional disputes of the earlier eras, but the authors of these essays demonstrate why the preemption debate would benefit from a better understanding of why those disputes were settled and on what terms.

The contributors in Part II examine existing preemption law in a wide range of policy arenas: drug regulation (Daniel Troy); telecommunications (Thomas Hazlett); banking, insurance, and corporate law (Hal Scott); environmental policy (Thomas Merrill); and products liability (Samuel Issacharoff and Catherine Sharkey). Jointly and severally, the essays provide both an in-depth examination of preemption at work and a good sense of the awesome range of legal and economic questions that fall under the heading of preemption.

Part III returns to the broader questions. Robert Gasaway and Ashley Parrish explore the internal logic of preemption doctrine, and Ernest A. Young examines its federalism dimension. Anne van Aaken’s essay contrasts the American understanding of preemption with that of the European Union.

Contributors: Kenneth W. Starr, Richard A. Epstein, Michael S. Greve, Viet D. Dinh, Stephen Gardbaum, Daniel E. Troy, Thomas W. Hazlett, Hal S. Scott, Thomas W. Merrill, Samuel Issacharoff, Catherine M. Sharkey, Robert R. Gasaway, Ashley C. Parrish, Ernest A. Young, and Anne van Aaken.

Praise for Federal Preemption

"No scholars in modern American law have thought more deeply about issues of federalism than Richard Epstein and Michael Greve. That they have combined in cooperation with superb contributors from a wide range of perspectives to explore in depth these fundamental issues is a major event in American constitutionalism. This is a work of great intelligence and insight that will provoke and shape debate on these vital issues for decades to come."

--Walter E. Dellinger, partner, O'Melveny & Myers, and former acting solicitor general of the United States (1996-97)

"Richard Epstein and Michael Greve have collaborated to produce a timely volume on federalism's constitutional basis and its practical applications. The last few decades have brought a renewed appreciation for the role of states, particularly as laboratories for social legislation. At the same time, the rise of the modern litigation industry has caused many to renew calls for national preemption on economic policies and thus to provide the United States with a more uniform and predictable market. Both conservatives and liberals hoist the flag of federalism when it supports their policy preferences. Federal Preemption elevates the debate to a higher level of enduring principles that can guide our government in the 21st century."

--David M. McIntosh, partner, Mayer, Brown, Rowe & Maw LLP, and former member, United States House of Representatives (1995-2001)

"A thorough and invaluable compendium on a subject of abiding interest to the practitioner, scholar, and student alike."

--Theodore B. Olson, partner, Gibson, Dunn & Crutcher, and former solicitor general of the United States (2001-04)

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