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Implied Reverse Preemption

38 Pages Posted: 16 Jul 2009 Last revised: 27 Aug 2009

Anita Bernstein

Brooklyn Law School

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.

Keywords: legislative intent, preemption, tort liability

Suggested Citation

Bernstein, Anita, Implied Reverse Preemption. Brooklyn Law Review, Vol. 74, No. 3, 2009; Brooklyn Law School, Legal Studies Paper No. 162. Available at SSRN: https://ssrn.com/abstract=1433536

Anita Bernstein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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