Make Congress Speak Clearly: Federal Preemption of State Tort Remedies

Abstract

This Article argues that when such statutory ambiguity exists, courts should be extremely wary of finding congressional intent to preempt. The relative judicial willingness-reflected in Cipollone-to find preemption, even when Congress has not made its intent unmistakably clear, threatens to erode bedrock principles of federalism. Historically, clear statement rules have been applied to legislation that threatened to alter the constitutional balance inherent in our system of federalism. Applying these interpretive rules to preemption, courts should exercise extreme caution before disrupting important state interests that the states have spent many years developing though the common law. Few values are more central to federalism than the right of states to provide a compensatory remedy for their injured citizens.

Keywords: Compensation, preemption, remedies