Sunday, January 20, 2008

Sharkey on Preemption

Given the recent cert grants on preemption, this might be a good time to revisit Catherine Sharkey (NYU)'s piece entitled "The Fraud Caveat to Preemption" which I mentioned back in October.  Sharkey has a new piece on preemption that is also of interest to those following this issue: "Products Liability: An Institutional Approach" posted on SSRN.

Her take on the cases is that "At first glance, the United States Supreme Court's preemption jurisprudence in the realm of products liability cases is a nearly incoherent muddle. But a closer view actually reveals an unmistakable pattern: in every case, the Court, with only one exception, has adopted the position of the relevant federal agency as to whether the plaintiff's state law claims should be preempted by that agency's regulations. The Court is hardly forthright about its dependence upon agencies."  She argues that this is right: "courts should look to agencies to supply the data and analysis necessary to determine if preemption is appropriate; i.e., to determine when a uniform, national regulatory policy with respect to a certain product makes the most sense or, instead, whether such regulation is better left to the states, in which case a plaintiff's common law claim should be permitted to proceed."  She includes the caveat that agencies are subject to incompetence and capture, and proposes some additional safeguards to deal with that problem.


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