Common Law and Federalism in the Age of the Regulatory State

56 Pages Posted: 28 Jun 2006


Over the past several decades, the growth of federal statutes and the rise of the regulatory state have weakened and displaced state common law even in the absence of express or implied preemption. However, there is a strong theoretical and judicial foundation on which to argue that the existence of statutes, regulations, and the data they generate should be used to inform and develop state common law rather than overshadow or displace it. Moreover, in this current age of the new federalism, such progressive common law development at the state level may be particularly timely and appropriate. This article uses these principles to provide a new perspective on the evolution of environmental law from its common law beginnings, to the flurry of federal statutes and regulations beginning in the 1970s, to present-day state and local environmental protection initiatives, and to argue for increased emphasis on state common law in modern environmental protection efforts.

Keywords: Environment, Federalism, Common Law, Tort, Natural Resources, Environmental Law

JEL Classification: K11, K13, K32

Suggested Citation

Klass, Alexandra B., Common Law and Federalism in the Age of the Regulatory State. Iowa Law Review, Vol. 92, p. 545, 2007, Minnesota Legal Studies Research Paper No. 06-26, Available at SSRN:

Alexandra B. Klass (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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