Bernstein on Implied Reverse Preemption

When they apply the doctrine of preemption, courts refuse to hearclaims for personal injury on the ground that adjudication of theseclaims would be inconsistent with a regulatory scheme. Finding thatfederal law preempts personal injury in those cases where Congress hasnot made this declaration overt is an inference about congressionalpurpose and intent. Because what Congress meant to do does not appearin the words of a statute, implied preemption can be more accuratelyunderstood as “inferred preemption.”

Current preemption law asymmetrically assumes that Congresssometimes intends to preempt tort liability yet never intends toabandon this kind of preemptive design once undertaken. This assumptionis inaccurate, as a study of one exemplar – consumer product safetyregulation – reveals. Because old inferences of preemption can growobsolete and inaccurate after Congress has moved in a differentdirection, the judge-made doctrine of implied preemption calls for acomplementary doctrine of implied reverse preemption.