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The AEI Federalism Project conducts and sponsors original research on American federalism, with particular emphasis on federal and state business regulation, legal developments and the role of the courts, and the prospects for rehabilitating a constitutional federalism that puts states in competition for productive citizens and businesses. Through its AG Watch, the Federalism Project monitors and comments on the increasingly active role of state attorneys general.

The AEI Federalism Project disseminates its research results and opinions through frequent conferences and other public events; through the Federalism Outlook, a newsletter written by the Project’s Director, Michael S Greve; through its website; and through books and publications in scholarly journals.

Federal Preemption: Law, Economics, Politics

Once-esoteric questions involving the federal preemption of state law (especially state tort law and consumer protection statutes) have become the subject of a contentious public debate. Consumer advocates, plaintiffs' attorneys, and state officials argue that broad federal preemption claims—often by federal regulatory agencies, without a clear congressional mandate—interfere with the states' historic role in protecting citizens against corporate misconduct. Corporations and federal agencies respond that preemption is often the only viable safeguard against unwarranted state interferences with the national economy. Aggressive trial lawyers and attorneys general, they say, upset carefully crafted regulatory compromises at the federal level. Preemption disputes along these lines have become a focal point of political debate and judicial decisions 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 to mattresses.

In all these areas, billions of dollars hang on regulatory nuances and arcane points of legal interpretation. But the preemption debate is being waged in the context of broader, sometimes constitutional, arguments and presumptions concerning the role and utility of federalism and "states' rights" in a modern, highly mobile and integrated economy. Legal scholars are sharply divided both over the substance of those arguments and over the extent to which they should dominate economic considerations or statutory language in what is, after all, a large universe of highly particular, industry- or area-specific preemption arrangements. Most agree, however, that preemption law—especially the federal courts' muddled doctrine in this field—merits a serious re-examination.

Our latest book, edited by Richard A. Epstein and Michael S. Greve, includes ten thoughtful essays by leading legal scholars and practitioners exploring preemption law from a broad range of perspectives—its constitutional backdrop; its trajectory over the past two centuries; its present contours and economic implications in such areas as network industries, environmental law, financial and securities regulation, and pharmaceuticals; and its prospects in light of recent developments in Congress, regulatory agencies, the states, and the courts.

Table of Contents

Preface, Kenneth W. Starr

Introduction: Preemption in Context, Michael S. Greve & Richard A. Epstein

PART I: CONSTITUTIONAL CONTEXT

Chapter 1: Federal Displacement of State Law: The Nineteenth-Century View, Viet C. Dinh

Chapter 2: The Breadth vs. the Depth of Congressís Commerce Power: The Curious History of Preemption during the Lochner Era, Stephen A. Gardbaum

PART II: APPLICATIONS

Chapter 3: The Case for FDA Preemption, Daniel E. Troy

Chapter 4: Federal Preemption in Cellular Phone Regulation, Thomas W. Hazlett

Chapter 5: Federalism and Financial Regulation, Hal S. Scott

Chapter 6: Preemption in Environmental Law: Formalism, Federalism Theory, and Default Rules, Thomas W. Merrill

Chapter 7: Supreme Court Preemption: The Contested Middle Ground of Products Liability, Samuel Issacharoff & Catherine M. Sharkey

PART III: THE LOGIC OF PREEMPTION

Chapter 8: The Problem of Federal Preemption: Toward a Formal Solution, Robert R. Gasaway & Ashley C. Parrish

Chapter 9: Federal Preemption and State Autonomy, Ernest A. Young

Chapter 10: Supremacy and Preemption: A View from Europe, Anne van Aaken

Conclusion, Michael S. Greve & Richard A. Epstein


Other Preemption Articles

Federalism's Frontierpdf

Michael Greve, 7 Texas Review of Law & Politics 93 (2002)

Federal Preemption: James Madison, Call Your Officepdf

Michael Greve, 33 Pepperdine Law Review 77 (2005)

Preemption in the Rehnquist Court: A Preliminary Empirical Assessmentpdf

Michael Greve, 14 Supreme Court Economic Review 43 (2006)

Free Eliot Spitzer!

Michael Greve, Federalist Outlook #12 · May/June 2002 view pdf

The Term the Constitution Died

Michael Greve, Federalist Outlook #18 · July/August 2003 view pdf

Subprime, but Not Half-Bad: Mortgage Regulation as a Case Study in Preemption

Michael Greve, Federalist Outlook #19 · September/October 2003 view pdf

U.S. Rules Shield Industries from Lawsuitspdf

Myron Levin & Alan C. Miller, Los Angeles Times, February 19, 2006

Attack of the Federalistaspdf

Neal Peirce, The Seattle Times, February 27, 2006

'Silent Tort Reform' Is Overriding States' Powerspdf

Stephen Labaton, The New York Times, March 10, 2006