Preemption/ Federalism

While the states play an important role in our country’s legal system, the U.S. Constitution grants the federal government limited but essential authority to preempt certain state laws. This federal preemption benefits the U.S. economy by reducing lawsuit abuse, ensuring strong, uniform health and safety standards, as well as providing a consistent and fair legal climate for businesses across the United States. Read More...

Preemption of certain state laws improves the climate for businesses, both large and small, by ensuring consistent, uniform national standards. The efficiency savings from preemption are passed on to consumers through reduced prices and increased access to lifesaving and life-improving products. Preemption also allows knowledgeable federal regulators to establish and enforce important uniform health and safety requirements for regulated products. 

On the other hand, in policy areas where federal preemption is limited, businesses are potentially subjected to a confusing and inconsistent patchwork of state and federal laws. In such an environment, plaintiffs’ lawyers are able to exploit inconsistent standards to bring cases in lawsuit-friendly states. Simply put, plaintiffs’ lawyers support eliminating preemption because it would allow them to file more lawsuits.

Eliminating preemption would also hamper a free, nationwide market for goods and services. This was one of the major goals of the Founding Fathers when they adopted the U.S. Constitution, which explicitly allows Congress to regulate commerce “among the several states.”

For these reasons, Congress should reject legislation that would eviscerate federal preemption in areas such as food and drug safety, auto safety, and financial regulations.


Suggested Resources


All Results for Preemption/ Federalism

  1. Torts of the Future II: Addressing the Liability and Regulatory Implications of Emerging Technologies

    April 18, 2018 | Research

    The second edition of ILR's Torts of the Future research examines evolutions in regulatory and liability trends for emerging technologies including artificial intelligence, virtual reality, wearable devices, and 3D printing. The research also presents a number of updated guiding principles to inform courts, legislators, and policymakers as they seek to address privacy and safety concerns without derailing or delaying innovation.... Read More

  2. The Great Myths of State False Claims Acts

    February 28, 2018 | Research

    The 2018 update to "Great Myths of State False Claims Acts" shows that the whistleblowers' bar is continuing to capitalize on state qui tam False Claims Acts (FCAs), harvesting windfall awards from states and the federal government. The paper also points out that the dubious benefits of implementing a state FCA turn into a clear financial net negative when states allow their FCAs to fall out of compliance with federal standards.... Read More

  3. Constitutional Constraints: Provisions Limiting Excessive Government Fines

    October 27, 2015 | Research

    This paper outlines the constitutional constraints that limit excessive and duplicative government fines and penalties, including the Excessive Fines Clause and Due Process Clause.... Read More

  4. FDA's Generic Drug Proposal Should Have Consumers Feeling Ill

    April 28, 2015 | News and Blog

    Just like a bad cold that you can't quite kick, the FDA's proposal to abandon its requirement for generic drugs to carry the same warning labels as their brand-name counterparts is back. And, it should have you feeling ill. ... Read More

  5. WATCH: Washington Legal Foundation Briefing on Lawsuit-Generating FDA Generics Labeling Proposal

    April 11, 2014 | News and Blog

    The Washington Legal Foundation, in cooperation with the Generic Pharmaceutical Association and the American Enterprise Institute, held a media briefing to discuss the consequences of the FDA's proposed generic labeling requirement. ... Read More

  6. New Study Confirms: FDA Rule Would Create a Costly Lawsuit Machine

    February 05, 2014 | News and Blog

    A proposed FDA rule regarding generic pharmaceuticals would lead to costly lawsuits, according to a new study released today Matrix Global Advisors.... Read More

  7. In the News Today - January 27, 2014

    January 27, 2014 | News and Blog

    Shareholders filed 238 federal securities lawsuits against American companies in 2013, the most since 2008.... Read More

  8. In the News Today - December 4, 2013

    December 04, 2013 | News and Blog

    An appeals court has overturned a National Labor Relations Board decision that prevented employers from including arbitration agreements in employee contracts.... Read More

  9. A Proposal for Higher Costs & More Lawsuits

    November 11, 2013 | News and Blog

    On Friday, the Food and Drug Administration released a draft regulation that would allow generic drug makers to change warning labels on their products.... Read More

  10. In the News Today - October 29, 2013

    October 29, 2013 | News and Blog

    The legal tab for U.S. banks is expected to rise to $107 billion or more in the coming years.... Read More