Preemption/Federalism

While the states play an important role in our country’s legal system, the U.S. Constitution grants the federal government limited but essential authority to preempt certain state laws. This federal preemption benefits the U.S. economy by reducing lawsuit abuse, ensuring strong, uniform health and safety standards, as well as providing a consistent and fair legal climate for businesses across the United States. Read More...

Preemption of certain state laws improves the climate for businesses, both large and small, by ensuring consistent, uniform national standards. The efficiency savings from preemption are passed on to consumers through reduced prices and increased access to lifesaving and life-improving products. Preemption also allows knowledgeable federal regulators to establish and enforce important uniform health and safety requirements for regulated products. 

On the other hand, in policy areas where federal preemption is limited, businesses are potentially subjected to a confusing and inconsistent patchwork of state and federal laws. In such an environment, plaintiffs’ lawyers are able to exploit inconsistent standards to bring cases in lawsuit-friendly states. Simply put, plaintiffs’ lawyers support eliminating preemption because it would allow them to file more lawsuits.

Eliminating preemption would also hamper a free, nationwide market for goods and services. This was one of the major goals of the Founding Fathers when they adopted the U.S. Constitution, which explicitly allows Congress to regulate commerce “among the several states.”

For these reasons, Congress should reject legislation that would eviscerate federal preemption in areas such as food and drug safety, auto safety, and financial regulations.

 

Suggested Resources

Research

All Results for Preemption/Federalism

  1. Waking the Litigation Monster: The Misuse of Public Nuisance

    March 06, 2019 | Research

    Local governments are increasingly teaming up with contingency fee lawyers to influence public policy issues through litigation, largely through attempts to expand the public nuisance doctrine. ILR's research outlines the origins and development of public nuisance litigation, shows the ongoing efforts of activists and attorneys to morph this theory into an all-purpose cause of action, and calls on courts to reject expanding judicial authority inappropriately into the legislative and executive branches. ... Read More

  2. Containing the Contagion: Proposals to Reform the Broken Securities Class Action System

    February 25, 2019 | Research

    Record-high numbers of securities class action filings are swamping the protections that Congress created in 1995. In fact, the likelihood that a public company will be sued has never been greater, and the bulk of these lawsuits show the classic signs of litigation abuse. However, solutions are at hand. This research proposes regulatory and legislative action to contain the securities litigation contagion.... Read More

  3. Risk and Reward: The Securities Fraud Class Action Lottery

    February 25, 2019 | Research

    Securities fraud class action lawyers are playing the "litigation lottery," filing often meritless cases against big companies on the off-chance of a big settlement. This research looks at all securities fraud class actions filed between 2005 and 2016 to reveal the true incentives that motivate plaintiffs' lawyers to roll the dice on these lawsuits, despite their high dismissal rate.... Read More

  4. In the News Today - January 7, 2019

    January 07, 2019 | News

    "Fighting a Tort Plague;" U.S. Supreme Court to Hear Case on M&A Lawsuit Standards... Read More

  5. Bristol-Myers Squibb Battlegrounds: Personal Jurisdiction, A Year Later

    June 12, 2018 | Video | Watch

  6. BMS Battlegrounds: Practical Advice for Litigating Personal Jurisdiction After Bristol-Myers

    June 04, 2018 | Research

    The U.S. Supreme Court's decision last year in Bristol-Myers Squibb Co. v. Superior Court was a clear statement that the days of blatant, unchecked plaintiff forum shopping in search of outsized verdicts are at an end. ILR's research explores this paradigm shift and provides practical advice for defendants litigating BMS in the trenches.... Read More

  7. Torts of the Future: Autonomous Vehicles

    May 17, 2018 | Research

    Among all emerging technologies examined in ILR's Torts of the Future research papers, autonomous vehicles (AVs) may be popping up in headlines more than any other. In order to respond to this trend in public policy and interest, and to provide a valuable tool for legislators, regulators, and businesses seeking to learn more about this topic, ILR has compiled insights from two years of research on emerging liability and regulation issues for autonomous vehicles.... Read More

  8. Torts of the Future II: Addressing the Liability and Regulatory Implications of Emerging Technologies

    April 18, 2018 | Research

    The second edition of ILR's Torts of the Future research examines evolutions in regulatory and liability trends for emerging technologies including artificial intelligence, virtual reality, wearable devices, and 3D printing. The research also presents a number of updated guiding principles to inform courts, legislators, and policymakers as they seek to address privacy and safety concerns without derailing or delaying innovation.... Read More

  9. The Great Myths of State False Claims Acts

    February 28, 2018 | Research

    The 2018 update to "Great Myths of State False Claims Acts" shows that the whistleblowers' bar is continuing to capitalize on state qui tam False Claims Acts (FCAs), harvesting windfall awards from states and the federal government. The paper also points out that the dubious benefits of implementing a state FCA turn into a clear financial net negative when states allow their FCAs to fall out of compliance with federal standards.... Read More

  10. Constitutional Constraints: Provisions Limiting Excessive Government Fines

    October 27, 2015 | Research

    This paper outlines the constitutional constraints that limit excessive and duplicative government fines and penalties, including the Excessive Fines Clause and Due Process Clause.... Read More