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84 Tul. L. Rev. 1257 (2009-2010)

handle is hein.journals/tulr84 and id is 1269 raw text is: The Defense of Preemption: A View from the Trenches Alan Untereiner* I. INTRODUCTION ........................................................................... 1257 II. PREEMPTION IN OUR CONSTITUTIONAL SCHEME AND THE ROLE OF THE JUDICIARY ............................................................. 1258 ll. THE SYSTEMIC BENEFITS OF PREEMPTION: REGULATORY UNIFORMITY, UNIFIED NATIONAL MARKETS, EFFICIENCY, EXPERT REGULATORS, AND THE PROTECTION OF FEDERAL LAW S AND PROGRAM S ............................................................... 1261 IV MISPLACED CRITICISMS OF OBSTACLE PREEMPTION ................ 1263 V FEDERALISM AND THE PRESUMPTION AGAINST PRE EM PTION ............................................................................... 1265 VI. CONGRESS'S ABILITY TO ACCOMMODATE FEDERALISM C ON CERN S ................................................................................. 1268 VII. AGENCY PREEMPTION ............................................................... 1271 V II1 C ONCLUSION .............................................................................. 1273 I. INTRODUCTION Most lawyers who have any familiarity with the law of federal preemption, and in particular the United States Supreme Court's cases involving the preemption of state tort requirements, would freely admit that the law is a muddle. Beginning with the Court's fractured 1992 decision in Cipollone v Liggett Group, Inc.,' which was argued twice before it was decided, the Court has issued a series of decisions, some of them fractured and confusing, that have alternatively cheered and flummoxed the plaintiffs' bar as well as product manufacturers, transportation companies, and other businesses that regularly rely on the preemption defense. Unfortunately, these cases-which are among the most hotly contested of all cases on the Supreme Court's docket, judging by amicus participation-have produced significant confusion in the law of preemption generally. As someone who has participated * © 2010 Alan Untereiner. Partner, Robbins, Russell, Englert, Orseck, Untereiner & Sauber, LLP Member of the District of Columbia and Pennsylvania Bars. A.B., Harvard University; J.D. Yale Law School. 1. 505 U.S. 504 (1992). 1257

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