Wednesday, August 27, 2008
Professor Richard Epstein (Chicago) has published The Case for Field Preemption of State Laws in Drug Cases on Northwestern University Law Review's Colloquy. Here's an excerpt:
This brief Comment renews my defense of strong field preemption for FDA regulation. In Part I, I shall set out the emergence of modern preemption law in light of the vast expansion of federal power after the New Deal with special reference to two cases of great current concern, Riegel and Levine. Thereafter, in Part II, I shall comment first not on Professor Sharkey’s article, but on a recent essay by David Kessler and David Vladeck that takes the strong view that the doctrine of implied preemption should not be applied in duty-to-warn drug cases. Then, in Part III, I address Professor Sharkey’s agency model, and lastly, in Part IV, I offer a brief capitulation of my field preemption position.