This Article provides a brief explanation of the state of preemption doctrine and explains how the Court altered, quite dramatically, its treatment of preemption of common law tort actions in the last two decades. The Court's almost exclusive focus on the interpretation of express preemption provisions, which never specifically address common law tort claims one way or the other, turned "traditional" preemption analysis of common law tort claims on its head. The Court then, almost as suddenly, signaled a retreat from the emphasis on express preemption analysis and returned, awkwardly, to implied preemption doctrine. The Court has only recently begun meaningful modem analysis of implied preemption, particularly with its decisions Geier v. American Honda Motor Co. and Wyeth v. Levine, and that doctrine will require years of fleshing out by the Court's current members. After describing the current, uneasy state of preemption doctrine, this Article will provide a few observations about the normative inquiry regarding what preemption doctrine should, and should not, be accomplishing.

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Brooklyn Law Review, Vol. 74, No. 3 (Spring 2009), pp. 759-780

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Torts Commons



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