Kenneth W. Starr

AEI’s Federalism Project hosted a two-day conference on April 27–28 to discuss questions involving federal preemption of state law. The participants at the conference presented essays on the topic that will be updated and published in book form in 2007.

Consumer advocates, plaintiffs’ attorneys, and state officials argue that broad federal preemption claims interfere with the historical role for states in protecting their citizens against corporate misconduct. Corporations and federal authorities, however, counter that federal preemption safeguards against unwarranted state interference with the national economy. These disputes affect many regulatory arenas, including financial regulations, automobile safety, clean-air laws, telecommunication regulation, and energy.

Keynote speaker Kenneth W. Starr, a former independent counsel and now the dean of the Pepperdine University School of Law, discussed federal preemption in terms of the American constitutional structure and marketplace. He described the United States as “a duality of states, but united as one.” Starr praised marketplace experimentation in areas as diverse as education and welfare reform, but he argued that the federal government should be wary of state measures that intrude into America’s free-trade economic union and the orderly flow of commerce broadly defined.

Richard A. Epstein of the University of Chicago Law School framed the conference as an attempt to address the following question: what areas are properly governed by federal
regulation only, and what areas should be the exclusive jurisdiction of the states? The answers, according to Epstein, will vary according to subject area. He argued that while preemption is always treated as a conflict between state and federal laws, state and federal governments often act in coordination, increasing the power at both
levels, to the detriment of private action.

AEI’s Michael S. Greve discussed James Madison’s advocacy of a federal right of pre-approval of state legislation in all cases, often referred to as the Madisonian Negative. Under this theory, state law would have remained inoperative until Congress acted to approve it. Under the Supremacy Clause, however, state law stands unless and until Congress or the courts reject it. Greve suggested that the Madisonian Negative provides a lens through which to understand the force of the Supremacy Clause.

Stephen Gardbaum of the University of California School of Law discussed the modern presumption against federal preemption, arguing that today’s courts allow for concurrent state authority alongside federal authority.

Catherine Sharkey of the Columbia University School of Law and Samuel Issacharoff of the New York University School of Law described the functional analysis the courts apply to preemption cases concerning federal liability standards over the state law remedial standards. They contended that if the courts see that the federal government is trying to solve a coordination problem, then the courts offer a more expansive reading of federal interest. Similarly, under a predation model, the courts give the federal government broad leeway when it tries to stop the states from harming one another through opportunistic regulation.

Coleen Klasmeier discussed federal preemption in relation to decisions made by the Food and Drug Administration (FDA). Regulation in this area can affect prices, cause the precipitous withdrawal of a product from the market due to its potential risks, and depress research and development into new drugs over corporate concerns regarding liability. She argued that FDA regulation could provide a model for federal regulation in that it provides optimal-level guidance rather than simply offering consumers a baseline or a ceiling for drug intake.