Bernstein on Implied Reverse Preemption

Anita Bernstein (Brooklyn Law) has recently posted an intriguing article in SSRN entitled "Implied Reverse Preemption."    Here is the abstract:

When they apply the doctrine of preemption, courts refuse to hear claims for personal injury on the ground that adjudication of these claims would be inconsistent with a regulatory scheme. Finding that federal law preempts personal injury in those cases where Congress has not made this declaration overt is an inference about congressional purpose and intent. Because what Congress meant to do does not appear in the words of a statute, implied preemption can be more accurately understood as "inferred preemption."

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