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17th Annual Forum for State Appellate Court Judges

Preemption: Will Traditional State Authority Survive?

An Invitation-Only Seminar for Appellate Judges

Until now, as a matter of comity and respect for federalism, the United States Supreme Court has always begun its analysis of preemption questions with several key assumptions: Congress did not intend to displace state law unless it has explicitly said so; preemption of state law by federal regulation is not favored in the absence of persuasive reasons that permit no other conclusion; the presumption against preemption is heightened when the underlying state law is one of the historic police powers of the States; and federal agencies are not authorized to supply an intent to preempt when Congress has not.

All of these presumptions are up for review this Supreme Court term, and the breathtaking scope of what the Court could say about preemption—and the continued viability of state law—may revolutionize federal state relations and the availability of remedies in state civil justice systems for decades to come.

At the 2009 Judges Forum, nationally recognized legal scholars will present papers on two questions that are critical to judges who must make preemption decisions.

Thomas O. McGarity, Joe R. and Teresa Lozano Long Professor of Administrative Law at the University of Texas School of Law, will present a paper titled When Does State Law Trigger Preemption Issues? He will give an overview of federal preemption doctrine, describe the various subject matters in which parties have claimed that federal law preempts state law, and discuss recent Executive Branch attempts to preempt state causes of action through administrative regulations. Prof. McGarity is the author of THE PREEMPTION WAR: WHEN FEDERAL BUREAUCRACIES TRUMP LOCAL JURIES (Yale University Press 2008) and numerous other books and articles.

Mary J. Davis, Associate Dean for Administration and Faculty Development and Stites & Harbison Professor of Law at the University of Kentucky College of Law, will present a paper titled Is the "Presumption Against Preemption" Still Valid? She will review recent court decisions on preemption questions, with specific attention to the key assumptions historically made by courts faced with preemption claims, and provide an analysis of the options presently available to state courts when preemption claims are raised. Dean Davis is the author of The Battle over Implied Preemption: Products Liability and the FDA, 48 B. C. L. REV. 1089 (2007), and On Preemption, Congressional Intent, and Conflict of Laws, 66 U. PITT. L. REV. 181 (2004), as well as other articles and books on products liability law.

View and download Forum materials below

2009 Pound Forum Faculty

2009 Pound Forum Agenda

Professor McGarity's Paper

Dean Davis's Paper

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Last Updated June 26, 2008