Why Preemption Proponents are Wrong

Trial, Vol. 43, pp. 20-25, 2007

Georgetown Public Law Research Paper No. 12-097

7 Pages Posted: 22 Aug 2012

See all articles by Brian Wolfman

Brian Wolfman

Georgetown University Law Center

Date Written: March 1, 2007


The basic idea of federal preemption is easily stated: It is a constitutionally mandated principle that demands that federal law trumps state law when the two conflict or in the rare instances when a federal law is so comprehensive that there’s no role left for state law to fill. But in practice, courts have often had difficulty applying the principle.

For plaintiff lawyers, preemption is an ever-present worry. When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the defendant will probably assert that federal law preempts your client’s state law damages claim. You can expect this argument no matter how weak the federal regulatory scheme or how attenuated the connection between that scheme and the harms your client suffered or the state law duties under which your client seeks a remedy.

But defendants’ and tort “reformers’” pro-preemption arguments do not reflect current preemption doctrine as established by the courts. A common — and false — argument for preemption, for example, is that state tort law necessarily interferes with federal regulatory objectives.

Moreover, preemption of state tort law is a bad idea. Immunizing the makers of products that cause injury simply because, for instance, these products have been approved for marketing by a federal agency harms both the injured people and society generally.

Keywords: preemption, Supreme Court, federal law, federal regulatory effect, tort law, courts, state law

JEL Classification: K13, K10, K19

Suggested Citation

Wolfman, Brian, Why Preemption Proponents are Wrong (March 1, 2007). Trial, Vol. 43, pp. 20-25, 2007; Georgetown Public Law Research Paper No. 12-097. Available at SSRN: https://ssrn.com/abstract=2113497

Brian Wolfman (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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