New York University Public Law and Legal Theory Working Papers

Document Type



15 Theoretical Inquiries in Law 359 (2014)


At the core of the tort preemption cases before the U.S. Supreme Court is the extent to which state law can impose more stringent liability standards than federal law. The express preemption cases focus on whether the state law requirements are “different from, or in addition to” the federally imposed requirements. And the implied conflict preemption cases examine whether the state law standards are incompatible (impossibility preemption) or at least at odds (obstacle preemption) with the federal regulatory scheme.

But the preemption cases in the appellate pipeline — what I shall term the “second wave” of preemption cases — address a separate analytic question. Their focus is less on the substantive aspects of regulatory standards, and more on their enforcement. When can state tort law impose substantive duties or obligations that are “parallel” to federal requirements without thereby encroaching upon a federal agency’s discretionary enforcement prerogative? This is the new frontier in products liability preemption.

My proposed model suggests that courts facing these new issues should solicit input from federal agencies before resolving them. The model thereby offers a hybrid private-public model for the regulation of health and safety. It advocates an extension of my “agency reference model” to the “enforcement preemption” context: courts should place more emphasis on FDA input when deciding whether tort requirements are “parallel” to federal dictates, and (perhaps even more so) whether, even if they are, they nonetheless infringe on the federal agency’s discretionary enforcement prerogatives. Courts would thus seek guidance from federal agencies to determine whether a private right of action exists for the enforcement, via state law claims, of federal regulations.

Date of Authorship for this Version



preemption, enforcement preemption, Buckman, parallel requirements, FDA