Abstract

Most people think of preemption as a technical, constitutional doctrine, but it is pivotally important to health and safety and opens the door to broad judicial discretion. The Rehnquist and Roberts Courts’ jurisprudence, with its support for both business and preemption, has been distinctly antiregulatory, invalidating major state public health rules in occupational safety, tobacco control, and motor vehicle safety, among other things.1 And apart from these antiregulatory stances, the Supreme Court has also been maddeningly inconsistent. Consider three relatively recent cases. In its 2008 decision in Riegel v. Medtronic, Inc., the Court held that federal law bars injured consumers from challenging the ..