Federal Preemption of State Law: The Current State of Play

Abstract

This paper reviews the evolving case law on the boundary between state and federal power, covering both basic preemption doctrine and recent cases (particularly in the area of torts). It also provides a look at the evolving law regarding Congress’s commerce power and at when state law infringe on the federal government’s exclusive jurisdiction over foreign affairs. The paper’s general conclusion is that preemption law is likely to remain very messy because it involves overlapping issues: methods of interpreting federal statutes, views of federal versus state power, disputes about the role of regulation versus liability in controlling risks, attitudes toward juries and toward administrative agencies, and the benefits and drawbacks of specific regulatory policies. Because preemption cases have multiple dimensions, doctrinal tidiness is unlikely. However, the paper does outline some modest steps toward improving decision-making about the division of authority between states and the federal government.

Keywords: preemption, federal power, foreign affairs