The 'New' Presumption Against Preemption

Abstract:     
Is there or isn’t there a “presumption against preemption?” The Supreme Court continues to mention it, but then does, or doesn’t, apply it in a way that helps us understand what it is. This Essay explores the Court’s preemption opinions in the last several decades, particularly its most recent pronouncements, and concludes that, indeed, there is a presumption against preemption. It is a “new” presumption in the sense that it is borne of the Court’s active preemption docket in the last two decades which has more narrowly defined both express and implied preemption analysis. The “new” presumption is stronger in express preemption cases, operating as a true default rule in the absence of clear and manifest congressional intent to preempt, but is less rigid, or, in other words, more forgiving in implied preemption cases, giving breathing room to the definition of actual conflict while maintaining focus on congressional objectives.

Keywords: presumption, preemption, products liability, federalism

JEL Classification: K13, K41

Accepted Paper Series