Shook Attorneys Author WLF Monograph on Federal Preemption

Shook, Hardy & Bacon attorneys Frank Cruz-Alvarez, Jennifer
Voss, Jared Sherr and Talia Zucker have authored an October 2015
Washington Legal Foundation (WLF) monograph surveying eight years
of U.S. Supreme Court rulings to forecast trends in federal preemption
analysis for practitioners and policymakers.

With a forward by GlaxoSmithKline Senior Vice President and General
Counsel Daniel Troy, Federal Preemption: Origins, Types and
Trends in the U.S. Supreme Court considers how the doctrine of
federal preemption “will continue to challenge the judicial system in light
of Congress’s increasing desire to enact federal regulatory schemes that
implicate many traditional state government powers and functions.”

To this end, the monograph aims to provide “a guide to the competing
views on preemption expressed by the United States Supreme Court
and to anticipate what participants in the judicial system can expect
in the coming years as new preemption problems find their way to the
Court.” Examining express and implied preemption, the authors address
cases touching on air, motor and rail transportation; food safety and
advertising; immigration; natural gas; pharmaceuticals and medical
devices; tobacco; and securities and banking. They also discuss the future
of textualism and the increasing conflict over the “presumption against
preemption.”

“As our economy becomes more complex and Congress continues to
struggle with crafting broad federal regulatory schemes that impact
states’ regulatory authority, preemption jurisprudence will continue
to evolve to address the needs of our modern federal republic,” note
the authors. “Although over the course of the last decade the Court’s
preemption jurisprudence has been inconsistent, the stage is set for a
renaissance in the Court’s interpretation and application of the preemption
doctrine within our federal system.”

Issue 583