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


All Results for Preemption/ Federalism

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    January 07, 2019 | News

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

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    June 12, 2018 | Video | Watch

  3. 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

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    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

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    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

  6. 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

  7. 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

  8. FDA's Generic Drug Proposal Should Have Consumers Feeling Ill

    April 28, 2015 | News and Blog

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  9. WATCH: Washington Legal Foundation Briefing on Lawsuit-Generating FDA Generics Labeling Proposal

    April 11, 2014 | News and Blog

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    February 05, 2014 | News and Blog

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