Shook, Hardy & Bacon attorneys Frank Cruz-Alvarez, Jennifer Voss, Jared Sherr and Talia Zucker 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."