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Who Decides Who Decides: Federal Regulatory Preemption of State Tort Law

48 Pages Posted: 17 Oct 2009 Last revised: 7 Aug 2010

Mark Seidenfeld

Florida State University College of Law

Date Written: October 16, 2009


This paper begins by addressing whether preemption of tort law by federal regulatory schemes is preferable to allowing tort actions. In many contexts, there are benefits that derive from maintaining state tort suits as a back-up to federal regulation of nationally marketed goods or services. In other contexts, however, there are benefits to prohibiting such tort actions. Thus, the paper first concludes that the more meaningful question is who should decide whether federal regulation preempts tort suits - Congress, courts or agencies.

Addressing that question, the paper compares the institutional advantages of each of these bodies and concludes that agencies are best suited to exercise primary responsibility to answer the question of whether tort suits should be preempted in specific contexts. The paper makes clear, however, that in order to reap the rewards of agencies’ institutional advantages, courts should require that agencies use notice and comment rulemaking subject to hard look judicial review when making preemption determinations. Finally, the paper describes the proper role for Congress and the courts when agencies are given primary authority to determine preemption, and concludes that courts retain a crucial role in encouraging wise use of this authority and providing an avenue for continued deliberation about agency preemption decisions .

Keywords: Preemption, Regulation, Torts, Federalism

JEL Classification: K40

Suggested Citation

Seidenfeld, Mark, Who Decides Who Decides: Federal Regulatory Preemption of State Tort Law (October 16, 2009). NYU Annual Survey of American Law, Vol. 65, p. 611, 2010; FSU College of Law, Public Law Research Paper No. 404. Available at SSRN:

Mark Seidenfeld (Contact Author)

Florida State University College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-644-3059 (Phone)
850-644-5487 (Fax)


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