Thursday, January 17, 2008
Vladeck on Regulatory Preemption
The ACS blog has a post (with video) and an issue brief [PDF] from David Vladeck (Georgetown) relating to regulatory preemption. He focuses less on the wisdom (or lack of wisdom) of preemption and more on the means by which agencies are announcing their views on preemption:
The concern here is not with agencies expressing their position on the preemptive effect
of their regulatory actions. That is unobjectionable, and, in many instances, unavoidable. What is objectionable is 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. Invariably, in making these pro-preemption determinations, the agency is repudiating long-standing agency policy to the contrary.