Home -> Law Blog Directory -> Academic Blogs -> Legal Theory Blog

Academic

: Legal Theory Blog

Bernstein on Implied Reverse Preemption

By Lawrence Solum

Anita Bernstein (Brooklyn Law School) has posted Implied Reverse Preemption (Brooklyn Law Review , Vol. 74, No. 3, 2009) on SSRN. Here is the abstract:

When they apply the doctrine of preemption, courts refuse to hear claims for personal injury on the ground that adjudication of these claims would be inconsistent with a regulatory scheme. Finding that federal law preempts personal injury in those cases where Congress has not made this declaration overt is an inference about congressional purpose and intent. Because what Congress meant to do does not appear in the words of a statute, implied preemption can be more accurately understood as "inferred preemption."

Current preemption law asymmetrically assumes that Congress sometimes intends to preempt tort liability yet never intends to abandon this kind of preemptive design once undertaken. This assumption is inaccurate, as a study of one exemplar - consumer product safety regulation - reveals. Because old inferences of preemption can grow obsolete and inaccurate after Congress has moved in a different direction, the judge-made doctrine of implied preemption calls for a complementary doctrine of implied reverse preemption.

Recommended.

Full post as published by Legal Theory Blog on July 20, 2009 (boomark / email).