This article shall attempt to trace the twists and turns of Supreme Court preemption jurisprudence. Part I provides a brief overview of federal preemption law, considering the constitutional sources of preemption and the traditional preemption categories. Part II analyzes Cipollone v. Liggett Group, Inc., the source of modem Supreme Court doctrine regarding preemption of state tort law by federal safety legislation. Part III reviews seven post-Cipollone Supreme Court preemption cases: CSX Transportation, Inc. v. Easterwood, Freightliner Corp. v. Myrick, Medtronic, Inc. v. Lohr, Norfolk Southern Railway Co. v. Shanklin, Geier v. American Honda Motor Co., Buckman Co. v. Plaintiffs' Legal Committee, and Sprietsma v. Mercury Marine. An examination of these cases reveals how the Court's preemption jurisprudence appears to be bereft of any coherent theory or methodology.
Part IV explores Supreme Court preemption jurisprudence and offers some suggestions for improving the quality of federal preemption law. First, I recommend that the Court limit itself to an express preemption analysis when the statute in question contains preemptive language. Second, the presumption against preemption should be conceptualized in an explicit "clear statement" rule which would require the Court to uphold state tort law when Congress has not clearly expressed its intent to preempt state law. Third, saving clauses should be read in pari materia with express preemption provisions. Finally, the Court should allow administrative agencies to preempt common-law claims by regulation only if they formally and expressly exercise their preemptive authority.
Richard C. Ausness, Preemption of State Tort Law by Federal Safety Statutes: Supreme Court Preemption Jurisprudence Since Cipollone, 92 Ky. L.J. 913 (2003-2004).