Law Commons^™

The Change In Knowledge Proposal: Repairing Preemption Doctrine In Medical Products Liability, Yite John Lu

Yite J Lu

This Article proposes a new rule that would allow the FDA to achieve the best balance of medical product availability and safety without interference from tort law when the agency has adequately reviewed the safety science. After an analysis of the FDA’s competency to review, and manufacturers’ ability to hide, safety concerns, this Article argues that FDA review is adequate during the initial approval process, but the agency cannot adequately respond to newly acquired safety information that arises post-market. To take advantage of this finding, the change in knowledge proposal would require tort plaintiffs to show a change in the …

Federalism Under Obama, Gillian E. Metzger

William & Mary Law Review

No abstract provided.

Immigrant Laws, Obstacle Preemption And The Lost Legacy Of Mcculloch, Lauren Gilbert

Lauren Gilbert

Using Congress’ perceived failure to enforce the immigration laws as a backdrop, this paper will explore how the Supreme Court’s recent decision in Chamber of Commerce v.Whiting upholding the Legal Arizona Workers Act exposes some of the tensions and contradictions in modern preemption doctrine. Examining the relationship among express, field, impossibility and obstacle preemption, I explore three emerging trends, all evident in Chamber of Commerce v. Whiting. The first is an increasing reluctance of the Court to find implied obstacle preemption. The second related trend is an inclination to expand the scope of impossibility preemption beyond the physical impossibility cases. …

Legislating Preemption, Jamelle C. Sharpe

William & Mary Law Review

Federal preemption is perhaps the most important public law issueof the day. The stakes in preemption cases are enormous, as preemption determines whether the federal government or the statescontrol regulatory policy in a host of politically controversial contexts. Congress clearly has primary constitutional authority insetting federal preemption policy, but, for numerous political and practical reasons, cannot be solely responsible for its implementation.Determining which organ of the federal government is best at implementing preemption policy has therefore become the central preoccupation of the academic literature. While this comparative institutional analysis is certainly important in allocating preemptionpolicy-making business, it has elided a …

Preventive Force, Going A Step Further, Harry Borowski Esq

harry borowski

The 9/11 attacks and the 2003 Iraq War have led statesmen and scholars to reconsider their positions with regards to self-defense. Rogue states and terrorist organizations armed with sophisticated weapons present challenges that were unforeseen until now. In order to meet these threats some states have resorted to use anticipatory self-defense among which we can find the hotly debated notions of preemption and prevention.

This article raises the question of whether the notion of preventive force is starting to become an accepted means of anticipatory self-defense against threats originating from rogue states or terrorist organizations. This article claims that we …

Federal Preemption Of Claims Based On Cell Phone Hazards: Farina V. Nokia And The Road To The U.S. Supreme Court, Jean Eggen

Jean M. Eggen

No abstract provided.

Aep V. Connecticut And The Future Of The Political Question Doctrine, James R. May

James R. May

No abstract provided.

Delegating Supremacy?, David S. Rubenstein

David S Rubenstein

The Court has held that federal agencies may preempt state law in much the same way as Congress. While the Supremacy Clause clearly empowers Congress to displace state law, administrative preemption rests on the undertheorized assumption that Congress may “delegate supremacy” to agencies. This Article challenges the constitutionality of that premise and imagines an unfolding system where agencies are stripped of the power to create supreme federal law. My proposal will no doubt be controversial because of the significant implications it holds for federalism and the operation of modern government. Some of the more serious implications include the substantive displacement …

Slides: Collaborative Planning And Lessons Learned, Matt Sura

Best Management Practices (BMPs): What? How? And Why? (May 26)

Presenter: Matt Sura, University of Colorado Law School

48 slides

The Constitutionality Of Bankruptcy-Specific State Exemption Statutes, Jeffrey T. Ferriell

Jeffrey T Ferriell

Several States have adopted bankruptcy-specific exemption schemes that permit debtors to keep different assets in bankruptcy than they would be permitted to keep in a state collection proceeding. These bankruptcy-specific state exemption statutes have been challenged as unconstitutional with mixed results. This article explains the relationship between the Bankruptcy Code and state exemption statutes, describes the existing bankruptcy-specific state exemption provisions, and analyzes their constitutionality. It concludes that these statutes are constitutionally impermissible because they obstruct the "fresh start" purpose of the Bankruptcy Code.

Texas Elective Workers' Compensation: A Model Of Innovation?, Jason Ohana

William & Mary Business Law Review

Workers' Compensation is often described as a bargain between employers and employees. Employees give up the right to sue their employers in negligence for workplace injuries, and, in return, employers agree to pay predictable, statutorily mandated benefits to injured employees. Over time, this “bargain” became compulsory in every state but one. Texas is the only state in which employers and employees can decide whether or not to enter the workers' compensation bargain. This elective system has some fairly serious problems, and many have advocated its abandonment. This Note analyzes the system's history, compares the system to conventional compulsory systems, analyzes …

Federal Governmental Power: Preemption From The October 2008 Term (Twenty-First Annual Supreme Court Review & Selected Excerpts: Practicing Law Institutes Twenty-Sixth Annual Section 1983 Civil Rights Litigation Program), Eileen Kaufman

Eileen Kaufman

No abstract provided.

Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland

William & Mary Bill of Rights Journal

Enforcing federalism is most commonly thought to involve the search for a
constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared authority, federalism enforcement proceeds from a determination about the site of substantive power. This conception of federalism enforcement preserves the Constitution’s commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress
has exceeded its authority in reenacting the Voting Rights Act’s preclearance requirements. …

Secondary Liability For Securities Fraud: Gatekeepers In State Court, Jennifer J. Johnson

Jennifer J Johnson

This paper discusses gatekeeper liability under state securities laws for professionals and other secondary participants in securities transactions. The recent economic meltdown exposed numerous Ponzi schemes from Madoff to Medical Capital that were no longer able to masquerade as profitable enterprises. When promoters of fraudulent ventures are unable to provide restitution to their victims, plaintiffs seek out other sources of repayment including professionals and other secondary participants in the transactions that precipitated their losses. Although most scholars agree that professionals can perform an important role in deterring securities fraud, scholarly opinions vary widely on the appropriate liability regime, if any, …

Reassessing The Avoidance Canon In Erie Cases, Bernadette Bollas Genetin

Akron Law Faculty Publications

This Article advocates that the Supreme Court recalibrate the avoidance canon used in Erie cases in which Federal Rules are in potential conflict with state law. The Article examines the Court’s historical use of avoidance in Erie cases, observing that contemporary jurists inappropriately conflate the purposes of pre- and post-Hanna avoidance when they conclude that avoidance in both periods protected state interests. Avoidance in the post-Hanna period has been premised on protecting important state interests and regulatory policies, but pre-Hanna avoidance attempted, with mixed success, to protect the Federal Rules. The Article also reveals that the Court’s post-Hanna federalism focus …

The Medical Device Federal Preemption Trilogy: Salvaging Due Process For Injured Patients, Demetria D. Frank-Jackson

Demetria D Frank-Jackson

Ignoring over a century of tort law precedence, ultimately leaving thousands of people all over the country injured by medical devices without remedy, the prevailing jurisprudence on medical device federal preemption is both current and relevant. Due to the inherent ambiguity of the preemption provision Medical Device Amendments of 1976, where contemporary medical device litigation had its beginnings, the regulatory nature of common law tort claims against medical device manufacturers has been overwhelming called into question. Given this socio-judicial backdrop, the Article focuses on two rapidly developing areas of law: (1) preemption of certain medical device claims following the U.S. …

An Empirical Study Of Obstacle Preemption In The Supreme Court, Gregory M. Dickinson

Gregory M Dickinson

The Supreme Court’s federal preemption decisions are notoriously unpredictable. Traditional left-right voting alignments break down in the face of competing ideological pulls. The breakdown of predictable voting blocs leaves the business interests most affected by federal preemption uncertain of the scope of potential liability to injured third parties and unsure even of whether state or federal law will be applied to future claims.

This empirical analysis of the Court’s decisions over the last fifteen years sheds light on the Court’s unique voting alignments in obstacle preemption cases. A surprising anti–obstacle preemption coalition is forming as Justice Thomas gradually positions himself …

Movsesian V. Victoria Versicherung And The Scope Of The President's Foreign Affairs Power To Preempt Words, Cindy G. Buys, Grant Gorman

Cindy G. Buys

The federal courts continue to struggle with the scope of the federal government’s foreign affairs power to preempt state law. Recently, the Ninth Circuit Court of Appeals did an about face in Movsesian v.Victoria Versicherung, which involved a claim that a California statute using the phrase “Armenian Genocide” is preempted by a few informal nonbinding statements of executive policy made to Congress objecting to the use of those words in Congressional resolutions. In Movsesian I, the Ninth Circuit found the California statute preempted in a decision that would have expanded the federal government’s foreign affairs power to preempt state law …

The Case Against Preemption: Vaccines & Uncertainty, Mary J. Davis

Law Faculty Scholarly Articles

This article begins with a brief recap of the state of current preemption doctrine and how it governs the interaction of federal regulation of product manufacturers and state tort actions related to the actions of those manufacturers. Second, the article provides observations on how that doctrine might apply to vaccine injury litigation. Bruesewitz v. Wyeth, Inc. involves the preemptive scope of the Vaccine Act and the unique compensation system Congress created to respond to vaccine injuries. Bruesewitz was decided on February 22, 2011, and held that design defect claims are expressly preempted by the Vaccine Act. This article endeavors …

Reassessing The Avoidance Canon In Erie Cases, Bernadette Bollas Genetin

Bernadette Bollas Genetin

This Article advocates that the Supreme Court recalibrate the avoidance canon used in Erie cases in which Federal Rules are in potential conflict with state law. The Article examines the Court’s historical use of avoidance in Erie cases, observing that contemporary jurists inappropriately conflate the purposes of pre- and post-Hanna avoidance when they conclude that avoidance in both periods protected state interests. Avoidance in the post-Hanna period has been premised on protecting important state interests and regulatory policies, but pre-Hanna avoidance attempted, with mixed success, to protect the Federal Rules. The Article also reveals that the Court’s post-Hanna federalism focus …

Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard

Articles

To outsiders, securities law is not all that interesting. The body of the law consists of an interconnecting web of statutes and regulations that fit together in ways that are decidedly counter-intuitive. Securities law rivals tax law in its reputation for complexity and dreariness. Worse yet, the subject regulated-capital markets-can be mystifying to those uninitiated in modem finance. Moreover, those markets rapidly evolve, continually increasing their complexity. If you do not understand how the financial markets work, it is hard to understand how securities law affects those markets.

The Dodd-Frank Act's Expansion Of State Authority To Protect Consumers Of Financial Services, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) created the Consumer Financial Protection Bureau (CFPB) and delegated to CFPB the combined rulemaking and enforcement authorities of seven federal agencies that previously were responsible for protecting consumers of financial services. Congress decided to establish a single federal authority dedicated to consumer financial protection after federal banking agencies failed to protect American homeowners from unsound and predatory lending practices during the housing boom that occurred between 2001 and 2006. Federal regulators allowed lenders to make more than 10 million high-risk mortgages during those years. When the housing bubble burst in …

Who Killed The Hybrid Car? State And Local Green Incentive Programs After Metropolitan Taxicab V. City Of New York, Jonathan Skinner

Publications

Unnecessarily broad preemption ruling under the Energy Policy and Conservation Act discourages other states and municipalities from pursuing innovative, environmentally beneficial policies.

A Shift In Power: Why Increased Urban Drilling Necessitates A Change In Regulatory Authority Comment., Riley W. Vanham

St. Mary's Law Journal

Historically, Texas has boasted a very lucrative oil and gas industry, which has been vital to the state’s successful economy. Due to increased drilling in urban areas, particularly the Barnett Shale, the number of affected surface owners multiplied overnight, attracting attention to oil and gas issues. Legislation has been purported to remedy the longtime conflict in Texas property law caused by the dominance of the mineral estate over the surface estate. But no bill has passed having major policy-change implications. Currently, local governments freely adopt and enforce oil and gas regulations. These ordinances vary from city-to-city, creating inconsistencies for operators …

Pro-Gun Property Regulation: How The State Of Oklahoma Controls The Property Rights Of Employers Through Firearm Legislation, J. Blake Patton

Oklahoma Law Review

No abstract provided.

Medical Marijuana Zoned Out: Local Regulation Meets State Acceptance And Federal Quiet Acquiescence, Patricia E. Salkin, Zachary Kansler

Scholarly Works

Sixteen states and the District of Columbia currently permit the medical use of marijuana, yet state statutes fail to account for the challenges that confront municipal planners and officials whose agenda includes public health, safety and welfare of residents, including minor children. The intensity of the problem is perhaps most evident in Los Angeles, where there are approximately 800 dispensaries. Varying statutory approaches are provided for individuals to legitimately acquire the drug - they may grow it themselves, they may obtain it from their primary caregiver, or they may obtain it from a licensed dispensary. This raises a number of …

Regulating Controversial Land Uses, Patricia E. Salkin

Scholarly Works

While the definition of what may constitute a controversial land use differs from community to community, the bottom line is that land use controls have been attempting to regulate these uses since the advent of zoning (and through nuisance law before that). When regulating many types of controversial land uses, constitutional issues may come into play and federal and state preemption issues may arise. However, local governments typically have wide discretion in designing standards and regulations for many types of controversial uses. This article explores four typically controversial uses - off-campus fraternity and sorority housing, tattoo parlors, medical marijuana and …

Foreclosing On The Federal Power Grab: Dodd-Frank, Preemption, And The State Role In Mortgage Servicing Regulation, Kurt Eggert

Kurt Eggert

No abstract provided.