Monday, October 13, 2008

Troy and Wood On Preemption

Dan Troy and Rebecca Wood have contributed an article, "Federal Preemption at the Supreme Court," to the most recent issue of the Cato Supreme Court Review. Here's a link.

In a nutshell, Troy and Wood note that there were generally "lopsided majorities" in favor of preemption in the Supreme Court's decisions last Term. The authors then make three observations about those preemption cases:

"First, there is a significant focus on statutory interpretation, rather than grand constitutional conflicts, such as federalism." Article at 261. Troy and Wood suggest that express preemption cases, which focus on a statutory text, may cause less division in the Court than implied preemption cases, which arguably "open the door to more controversial aspects of a preemption analysis." Id.

"Second, other things being equal, the Court appears more inclined towards preemption where a case involved matters of special national interest or where an expert federal agency has issued a calibrated judgment that is threatened by contrary state action." Id. at 263.

Finally, "[t]he Court appears to take some comfort in the reality of a federal agency's having applied its expert judgment within the scope of its delegated power and urging that there be preemption. It generally did so, however, without expressly wading into a formal -- and sometimes divisive -- analysis of the nature or degree of deference due to the agency." Id.

Yes, yes: As the November 3 argument date in Wyeth v. Levine approaches, you can count on us to lean more and more to our usual programming: All preemption, all the time.

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