Law Commons^™

Renovations Needed: The Fda's Floor/Ceiling Framework, Preemption, And The Opioid Epidemic, Michael R. Abrams

Michigan Law Review

The FDA’s regulatory framework for pharmaceuticals uses a “floor/ceiling” model: administrative rules set a “floor” of minimum safety, while state tort liability sets a “ceiling” of maximum protection. This model emphasizes premarket scrutiny but largely relies on the state common law “ceiling” to police the postapproval drug market. As the Supreme Court increasingly holds state tort law preempted by federal administrative standards, the FDA’s framework becomes increasingly imbalanced. In the face of a historic prescription medication overdose crisis, the Opioid Epidemic, this imbalance allows the pharmaceutical industry to avoid internalizing the public health costs of their opioid products. This Note …

State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester

Michigan Law Review

The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission might …

Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash

Michigan Law Review

Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …

Preemption And Textualism, Daniel J. Meltzer

Michigan Law Review

In the critically important area of preemption, the Supreme Court’s approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona’s immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court’s preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of “obstacle preemption” analysis. Recently, however, Justice Thomas has objected to the Court’s failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle …

Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein

Michigan Law Review

The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …

Inside Agency Preemption, Catherine M. Sharkey

Michigan Law Review

A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes-an ascendancy …

The Significance Of The Local In Immigration Regulation, Cristina M. Rodríguez

Michigan Law Review

The proliferation of state and local regulation designed to control immigrant movement generated considerable media attention and high-profile lawsuits in 2006 and 2007. Proponents and opponents of these measures share one basic assumption, with deep roots in constitutional doctrine and political rhetoric: immigration control is the exclusive responsibility of the federal government. Because of the persistence of this assumption, assessments of this important trend have failed to explain why state and local measures are arising in large numbers, and why the regulatory uniformity both sides claim to seek is neither achievable nor desirable. I argue that the time has come …

Noontime Dumping: Why States Have Broad Discretion To Regulate Onboard Treatments Of Ballast Water, Kyle H. Landis-Marinello

Michigan Law Review

Ballast water discharges from shipping vessels are responsible for spreading numerous forms of aquatic invasive species, a form of biological pollution that leads to billions of dollars in annual costs. In the wake of inaction from the federal government and inaction from the shipping industry, several Great Lakes states are currently considering legislation to address the problem. Michigan has already passed a law to prevent ballast water introductions of invasive species. As states begin to regulate ballast water discharges from oceangoing vessels, such laws will likely face challenges based on the constitutional principles of the Dormant Commerce Clause and the …

Medicaid And The Unconstitutional Dimensions Of Prior Authorization, Jagan Nicholas Ranjan

Michigan Law Review

The political outcry over prescription drug costs has been one of the most vociferous in recent memory. From tales depicting renegade seniors sneaking cheap prescriptions of Vioxx out of Tijuana across the border, to the promises of reduced prices made by front-runners during the 2000 Presidential election, the calls for lower drug prices have been forceful and demanding. This war for lower-priced pharmaceuticals fought by consumers, interest groups and politicians against the pharmaceutical industry itself has recently developed yet another front. The latest battle is over Medicaid. The new victims are the poor. Presently, federal statutory provisions in the Medicaid …

Interstate Preemption: The Right To Travel, The Right To Life, And The Right To Die, Lea Brilmayer

Michigan Law Review

State laws differ, and they differ on issues of tremendous importance to the ways that we conduct our lives. Abortion and the right to die are two issues on which state law intersects with deeply held moral convictions, and on which state laws vary. With so much hanging in the balance, it is not surprising that those who find themselves outvoted or outmaneuvered in local political processes sometimes seek a legal climate more compatible with their beliefs about human decency and dignity. The right to "vote with one's feet" - to travel or move to another state and trade a …

State Control Over The Reclamation Waterhole: Reality Or Mirage, Michigan Law Review

Michigan Law Review

This Note assesses how much state law section 8 saves from preemption. Section I reviews the interplay of state and federal water law in the West. It begins with a brief description of appropriation, the system of water rights found in the Western states, outlines the Reclamation Act of 1902, and then traces the Supreme Court's evolving construction of the Act. It culminates in a discussion of California v. United States, the Court's latest gloss on section 8. Section II expands the analysis of the California decision, integrating it with traditional preemption doctrine. It shows that section 8 respects …

Federal Preemption Of State Law: The Example Of Overbooking In The Airline Industry, Michigan Law Review

Michigan Law Review

Such complexity is common in the airline context, both because the Federal Aviation Act1 (FAA) and the Civil Aeronautics Board (CAB) do not purport to regulate all aspects of the industry and because airline activities are so varied that they come within the reach of numerous state statutory and common-law rules. This Note will consider the power of the CAB to preempt state law and thereby to insulate airline activities from state-law liability. It will suggest a framework for analyzing the problems of preemption by focusing on airline concealment of overbooking practices. Section I explains airline overbooking and demonstrates that …

Motor Vehicle Air Pollution: State Authority And Federal Pre-Emption, David P. Currie

Michigan Law Review

The problem of state authority over motor vehicle air pollution was recently highlighted when the Illinois Air Pollution Control Board, for the first time, adopted regulations to deal with vehicle emissions. Those regulations are disappointingly feeble. Except for outlawing visible smoke and for making it unlawful to dismantle pollution control devices, the new rules do nothing but state that the Board may decide to do something in the future about pollution from automobiles.

In attempting to improve upon these regulations, however, one is struck with a sense of considerable futility. Given the present limits of technology and the necessarily legislative …

Jurisdiction--Atomic Energy--Federal Pre-Emption And State Regulation Of Radioactive Air Pollution: Who Is The Master Of The Atomic Genie?, Michigan Law Review

Michigan Law Review

Pending litigation between the Minnesota Pollution Control Agency and Northern States Power Company presents a potential federal-state conflict over the right of a state to impose upon operators of nuclear power plants more exacting pollution control standards than those required by regulations of the Atomic Energy Commission (AEC). The AEC issued Northern States Power Company a permit to construct a nuclear power generating plant in Monticello, Minnesota. The regulations under which that permit was issued place a ceiling on the amount of radioactive effluents which can be discharged into the air during the course of the plant's operations. But under …

Copyright Pre-Emption And Character Values: The Paladin Case As An Extension Of Sears And Compco, Michigan Law Review

Michigan Law Review

Much of the confusion over copyright pre-emption that has followed in the wake of Sears and Compco may be due to a fundamental difference between the present patent and copyright acts. Unlike the patent law that was at issue in Sears and Compco, the federal Copyright Act provides that the states may in limited circumstances protect literary property through the doctrine of common-law copyright. Under section 2 of the Act, a state may prevent copying of a work so long as it remains "unpublished." An alternative ground of decision in Paladin was that, regardless of preemption under Sears and …

Labor Law--Federal Pre-Emption--Scope Of Arguable Nlrb Jurisdiction, Martin B. Dickinson Jr., S.Ed.

Michigan Law Review

Picketing by petitioner interrupted the unloading of respondent's cargo vessels. A state court granted respondent's request for a permanent injunction against further picketing, despite petitioner's contention that, since it was a "labor organization" within the meaning of section S(b) of the Labor Management Relations Act and respondent had alleged an unfair labor practice, the National Labor Relations Board had exclusive jurisdiction of the dispute. The Supreme Court of Minnesota affirmed the granting of injunctive relief. On certiorari to the United States Supreme Court, held, reversed, one Justice dissenting. Since an unfair labor practice has been alleged and petitioner is …

Labor Law-Federal Pre-Emption-State Power To Exclude Ex-Felons From Union Office, Charles E. Voltz

Michigan Law Review

A New York statute, implementing a congressionally-approved interstate compact, prohibits a waterfront union from collecting dues if any officer of the union has been convicted of a felony, unless he has been subsequently pardoned or given a certificate of good conduct by the parole board. In response to a threat of prosecution by the defendant district attorney, plaintiff's international union suspended him from his local union office on a showing that he had been convicted of grand larceny in 1920. Plaintiff sought in a declaratory suit to have the statute declared unconstitutional and to have its operation enjoined. The New …

"Congress Shall Make No Law…":Ii, O. John Rogge

Michigan Law Review

The framers of the federal bill of rights by the First and Tenth Amendments sought to deny Congress power over utterances unless they were connected with criminal conduct other than advocacy. Any power over such utterances was to reside in the states. However, the Supreme Court departed from the framers' intent.

One of the factors in this development was the emergence of an undefined federal police power. This occurred largely under the commerce and postal clauses. It began over a century ago. As early as 1838 Congress passed a law requiring the installation of safety devices upon steam vessels. Beginning …

The Commerce Clause As A Restriction On State Taxation, J M. Landis

Michigan Law Review

In the discussion of a topic of this nature, my purpose is to restrict and not to enlarge the field of available evidence. The immense powers granted to Congress under the commerce clause are too well known, and the magnitude of their extension by the definition of the word "commerce" cannot be comprehended in a restricted dissertation such as this. Thus, the topic itself sets limits to our.range. It concerns itself with the existence of two powers, the paramount congressional control over commerce and the state's powers to tax. Both are inclined to encroach upon the prerogatives of the other, …