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January 20, 2008

New Preemption Articles

There are two new articles covering preemption in products liability cases that should be of particular interest in light of the Supreme Court's decision last week to grant review in two preemption cases.

Professor Catherine M. Sharkey of the New York University School of Law has posted a new article, "Products Liability Preemption: An Institutional Approach to be published in a forthcoming issue of volume 76 George Washington Law Review.  Given the Supreme Court's reliance on agency preemption determinations, and its sometimes cryptic explanations for that reliance, Professor Sharkey advances a new “agency reference model” to fill the doctrinal gap, which is intended to provide not only a lens for viewing the Court's past decisions but also a prescriptive approach for future cases.

A second article, "The Emerging Threat of Regulatory Preemption," a White Paper by David C. Vladeck, Professor of Law, Georgetown University Law Center, and Scholar, Center for Progressive Reform, was recently published in the American Constitution Society for Law and Policy.  It takes the position "that agencies are making substantive preemption determinations in a way that is neither transparent nor democratic, and are doing so because the Administration has determined that insulating big business from tort litigation is right as a matter of federal policy."  The article is intended to illustrate "that this campaign is well-underway," and that it raises serious policy implications, and second, "to explain why making preemption determinations by regulatory fiat raises serious separation of powers and agency capture concerns."

MKS

January 20, 2008 | Permalink

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