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Widener Univ. School of Law

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Wednesday, January 25, 2006

Preemption All Over The Place

Last fall, NHTSA announced new roof crush rules that purport to preempt conflicting state laws.  Many state AGs and legislators are resisting.

Hey, that sounds sort of familiar.  Any other agencies out there declaring preemption?  And does this seem a little like the use of presidential signing statements?

It's hard for me to see just how much weight courts are going to give to regulatory agencies' views of the preemptive effects of their rules -- is there anything about the FDA or NHTSA that makes them particularly expert in terms of whether a regulatory scheme should be held to preempt state law?  I suppose the best argument is in the area of implied conflict preemption, where the agencies could reasonably say that state tort law would be an obstacle to the "accomplishment and execution" of the Congressional mandate.  (Hines v. Davidowitz, 312 U.S. 52, 67 (1941).) 

Even there, I doubt the courts will be all that interested unless the agencies can have a fairly compelling factual argument about the conflict -- and I don't think the arguments that have been presented thus far add much to what defendants have been saying for years.

[NHTSA story via Point of Law]

http://lawprofessors.typepad.com/tortsprof/2006/01/preemption_all_.html

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