Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question
The Constitution’s federalist structures protect states’ sovereignty but also create a powerful federal government that can preempt and thereby displace the authority of state and local governments and courts to respond to a social challenge. Despite this preemptive power, Congress and agencies have seldom preempted state power. Instead, they typically have embraced concurrent, overlapping power. Recent legislative, agency, and court actions, however, reveal a newly aggressive use of federal preemption, sometimes even preempting more protective state law. Preemption choice fundamentally involves issues of institutional choice and regulatory design: should federal actors displace or work in conjunction with other legal institutions? This book moves logically through each preemption choice step, ranging from underlying theory to constitutional history, to preemption doctrine, to assessment of when preemptive regimes make sense and when state regulation and common law should retain latitude for dynamism and innovation.
Author(s): William Buzbee
The Preemption War: When Federal Bureaucracies Trump Local Juries
For the last decade, Americans’ right to sue manufacturers whose products cause them injury or harm has been under attack. It’s been a quiet war, but it has been fierce, raging simultaneously in the courts, federal regulatory agencies, and Congress. The conflict is over what is called agency preemption, and the fundamental question is whether and under what circumstances regulations by federal agencies may preempt – which is to say, trump – state laws allowing victims to bring suit against companies whose actions cause them harm. Read about Thomas McGarity's book on the topic.
Author(s): Thomas McGarity
Limiting Federal Agency Preemption: Recommendations for a New Federalism Executive Order
Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President's First 100 Days
Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President's First 100 Days, By CPR Member Scholars Rebecca M. Bratspies, David M. Driesen, Robert L. Fischman, Sheila Foster, Eileen Gauna, Robert L. Glicksman, Alexandra B. Klass, Catherine A. O’Neill, Sidney Shapiro, Amy Sinden, Rena Steinzor, Robert R.M. Verchick, and Wendy Wagner, and CPR Policy Analyst James Goodwin
November 11, 2008. CPR Scholars Propose Slate of Executive Orders to Launch Obama Administration's Work on Health, Safety and Environment.
The Truth About Torts: Regulatory Preemption at the Consumer Product Safety Commission
The Truth About Torts: Regulatory Preemption at the Consumer Product Safety Commission, CPR White Paper 807.
Author(s): Bill Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, Matt Shudtz
August 28, 2008, Saving Science from Politics: CPR Scholars' 'Nine Reforms' Offers Blueprint.
Saving Science from Politics: Nine Essential Reforms of the Legal System
Poisoned for Pennies: The Economics of Toxics and Precaution
The term, “Cost-benefit analysis,” is used so frequently that we rarely stop to think about it. But relying on it can lead to some dubious conclusions, as Frank Ackerman points out in this eye-opening book. Inventing dollar values for human life and health, endangered species, and fragile ecosystems does not guide us to better policies, he maintains. Cost-benefit analysis, as practiced today, could have led to damming the Grand Canyon for hydroelectric power, leaving lead in gasoline, and other absurd and harmful decisions. In Poisoned for Pennies, Ackerman uses clear, understandable language to describe an alternative, precautionary approach to making decisions under uncertainty.
Author(s): Frank Ackerman