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Tulane Law Professor Chairs ABA Task Force on Preemption

August 16, 2010

Professor Edward Sherman, former Dean of Tulane Law School, presented an important task force report that the American Bar Association (ABA) adopted at its annual meeting in San Francisco last week. The resolution calls on Congress and federal agencies to follow certain procedures as to when a federal rule “preempts” – that is, prevents the application of – state law.

“These procedures,” he said, “do not take a position for or against preemption, but require Congress and federal agencies to think about what they are doing when they establish rules that may conflict with state law. This could cut down on unnecessary litigation in the future.”

When Congress passes legislation, or a federal agency issues a rule, there may be a question whether the federal rule preempts the right to sue under state law. According to Sherman, “despite the difficult word ‘preemption,’ the issue has been one of the most hotly contested legal issues affecting the right to sue in such matters as the safety of products, drugs, and medical devices.”

Take the case where a federal agency that oversees highway safety passes a rule setting a safety standard for the design of automobile roofs. If an auto-maker meets that standard, can a person injured in an accident still sue under state law alleging that the roof design was unsafe despite the auto-maker’s complying with the federal standard?
The answer is complex. If the agency clearly states that its rule preempts state law and there are good reasons for a uniform federal rule, the state rule is preempted under the federal government’s constitutional power to regulate commerce. The problem is that Congress and federal agencies are often unclear as to whether the federal rule is intended to preempt or may fail to have good reasons to displace state law. 
During the Bush administration, a number of federal agencies claimed preemption in preambles to administrative rules or court briefs. Courts often complained that the record was unclear as to whether there was a clear intent to preempt and good grounds for it.
Even if a federal agency makes its intent to preempt state law clear, it must demonstrate that this does not infringe the constitutional rights of states to regulate as to the safety of its citizens. In fact, the National Highway Traffic Safety Administration (NHTSA) during the Bush administration did claim preemption in issuing a roof design rule, but that was rescinded in the Obama Administration. Had it not been, courts would have had to determine whether preemption was justified.
A year and a half ago, the ABA appointed a task force of distinguished attorneys, judges, and law professors to review its policies on preemption with Professor Sherman as Chair. The task force’s recommendation, which was passed by the ABA House of Delegates, calls on the Congress and federal agencies to be clear when they intend to preempt and to provide support in the record to show that state tort law has to be displaced because it would interfere with the federal rule. 
Professor Sherman stated that “these procedures would provide more clarity, transparency, and respect for the constitutional division of powers between the federal government and states.” He said there is often needless litigation over whether a congressional statute or administrative agency rule preempts the right to sue in state court.

“The ABA proposal,” he said, “simply requires Congress and federal agencies to think about what they are doing when they establish rules that may conflict with state law which may require higher safety standards. This can bring greater certainty to the complex question of federal versus state rights.”


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