Sharkey on Preemption

Given the recent cert grants on preemption, this might be a good time to revisit Catherine Sharkey (NYU)’s piece entitled “The Fraud Caveat to Preemption” which I mentioned back in October.  Sharkey has a new piece on preemption that is also of interest to those following this issue: “Products Liability: An Institutional Approach” posted on SSRN.

Her take on the cases is that “At first glance, the United StatesSupreme Court’s preemption jurisprudence in the realm of productsliability cases is a nearly incoherent muddle. But a closer viewactually reveals an unmistakable pattern: in every case, the Court,with only one exception, has adopted the position of the relevantfederal agency as to whether the plaintiff’s state law claims should bepreempted by that agency’s regulations. The Court is hardly forthrightabout its dependence upon agencies.”  She argues that this is right: “courts should look to agencies to supplythe data and analysis necessary to determine if preemption isappropriate; i.e., to determine when a uniform, national regulatorypolicy with respect to a certain product makes the most sense or,instead, whether such regulation is better left to the states, in whichcase a plaintiff’s common law claim should be permitted to proceed.”  She includes the caveat that agencies are subject to incompetence and capture, and proposes some additional safeguards to deal with that problem.

ADL