Monday, August 10, 2009
Anita Bernstein (Brooklyn Law) has recently posted an intriguing article in SSRN entitled "Implied Reverse Preemption." Here is the abstract:
Current preemption law asymmetrically assumes that Congress sometimes intends to preempt tort liability yet never intends to abandon this kind of preemptive design once undertaken. This assumption is inaccurate, as a study of one exemplar - consumer product safety regulation - reveals. Because old inferences of preemption can grow obsolete and inaccurate after Congress has moved in a different direction, the judge-made doctrine of implied preemption calls for a complementary doctrine of implied reverse preemption.
An elegant idea. ADL