Conflicts scholars and jurists for centuries have sought an answer to the question of "what law controls?" by balancing a number of considerations. Chief among those considerations are the legitimate political and policy concerns of conflicting sovereigns. This article analyzes the Supreme Court's recent preemption decisions with an understanding of these theories and their underlying considerations. That analysis reveals that the Court's recent preemption decisions incorporate two modem conflict of laws theories: Governmental Interest Analysis and its corollary, Comparative Impairment. Each of these theories builds on the notion that a choice of law analysis should be motivated by selecting the applicable law based on a study of the purposes behind the laws in conflict, and choosing the law whose purposes would be promoted if applied to the instant case. When viewed in this light, often there is no underlying purposive conflict in the laws. In that instance, only one law should apply—the one whose objectives will be furthered if applied. The Supreme Court's implied preemption jurisprudence and its determination of those actual conflicts which trigger the application of federal law is consistent with these conflict of laws theories.
In Section I of this article, some basic conflict of laws theory is explained, with an emphasis on Governmental Interest Analysis and Comparative Impairment. In Section II, the Supreme Court's modem preemption cases are discussed to provide a background on current preemption analysis. Torts and products liability preemption cases are employed because they raise most vividly the important choice courts face in federal preemption matters between traditional state regulation through the common law and federal regulation through specific proscriptions. Many other preemption issues exist, but those involving products liability and other tort actions seem most to reflect the tension between federal and state interests when regulating fundamental matters of public health and safety.
Section III integrates the conflict of laws theories from Section I with the preemption doctrine of Section II to explain how the Court's implied preemption doctrine uses a modified Governmental Interest Analysis to determine whether an actual conflict exists. This section discusses the application of Governmental Interest Analysis and its corollary Comparative Impairment to preemption doctrine and identifies the value of such an analysis. This section notes the important similarities, and acknowledges the differences, between the noted conflict of laws theories and their application to federal preemption. Most importantly, the conflict of laws principles the Court uses to identify actual conflicts are examined and applied.
Finally, Section IV explains the normative value of Governmental Interest Analysis and Comparative Impairment as applied to federal preemption. The article argues that the Court's use of Governmental Interest Analysis and Comparative Impairment is appropriate to resolve implied preemption cases because: (1) it provides a methodology for courts to follow to identify the actual conflicts that require federal preemption; (2) it reveals the critical factors that influence the analysis under the Supremacy Clause; and (3) it will lead to increased predictability in, and understanding of, the application of federal preemption. Understanding the underlying conflict of laws inquiry provides greater clarity to the Court's otherwise opaque preemption jurisprudence.
Mary J. Davis, On Preemption, Congressional Intent, and Conflict of Laws, 66 U. Pitt. L. Rev. 181 (2004).