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Federal Preemption: States' Powers, National Interests.

Federal Preemption: States' Powers, National Interests

Richard A. Epstein and Michael S. Greve, editors

AEI Press

360pp., $20


One might have expected that a Supreme Court concerned about federalism and states' rights would have lessened the scope of federal preemption. One way to enhance the authority of state governments is by limiting the situations in which federal law is deemed to preempt state law.

But that was not true of the Rehnquist Court. Although that Court made its most dramatic changes in constitutional law in the area of federalism and restricting the scope of federal powers, it repeatedly sided with businesses bringing preemption challenges under federal statutes.

For example, in Geier v. American Honda Motor Co. in 2000, the Supreme Court found that a state tort claim against an automobile manufacturer was preempted by a federal law that contained a specific provision declaring that the law was not meant to preclude any other redress.

In Lorillard Tobacco Co. v. Reilly in 2001, the Court found that a Massachusetts law regulating the location of cigarette advertisements was preempted by a federal statute regulating the content of warning labels. Then, in American Insurance Association v. Garamendi in 2003, the Supreme Court concluded that the president's implied dormant foreign affairs power preempted a California law that required insurance companies doing business in the state to disclose insurance policies that they had issued to victims of the Holocaust.

At the very least, these cases cannot be reconciled with the traditional presumption against preemption. Thus, there is a need for careful scholarly attention to the area of preemption.

Richard Epstein, a University of Chicago law professor, and Michael Greve, an American Enterprise Institute scholar, have compiled an excellent volume of essays on preemption--although it is not an ideologically balanced treatment of the subject. Almost all the authors are prominent conservative scholars and lawyers.

Authors include conservative law professors, such as Viet Dinh and Ernie Young, and business attorneys, such as Daniel Troy. The preface is written by Kenneth Starr, who is now a dean and professor at Pepperdine University School of Law. The book is published by the American Enterprise Institute.

Two of the more interesting essays are historical discussions at the beginning of the book. Dinh traces the history of preemption in the 19th century, and University of California Los Angeles law professor Stephen Gardbaum looks at preemption in the Lochner era (from about 1890 to 1937). Both essays add to the understanding of how preemption doctrine developed. Also, a chapter near the end of the book, on preemption in Europe, is fascinating and original.

Some of the essays, though, are quite explicitly pro-business. Troy, for example, former chief counsel at the FDA, argues for expanding the situations in which FDA regulations are found to preempt state tort suits. Samuel Issacharoff and Catherine Sharkey, law professors at New York University and Columbia Law School, respectively, provide a more nuanced view of preemption in products liability cases. They analyze where these cases fit in preemption analysis--but without urging greater preemption of state laws.

Overall, the book is an excellent collection of essays, especially to get a sense of conservative thinking on preemption. Many believe that the Roberts Court will be even more pro-business than its predecessor, and, thus, there could be many attempts to have state and local laws struck down on preemption grounds. The volume edited by Epstein and Greve will be useful for lawyers and judges dealing with preemption issues, especially if they remember that the book represents conservative views on preemption.

ERWIN CHEMERINSKY is the Alston & Bird Professor of Law and Political Science at Duke University.
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Author:Chemerinsky, Erwin
Article Type:Book review
Date:Feb 1, 2008
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