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The Preemption WarWhen Federal Bureaucracies Trump Local Juries$
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Thomas O. McGarity

Print publication date: 2008

Print ISBN-13: 9780300122961

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300122961.001.0001

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The Preemption War in the Federal Agencies

The Preemption War in the Federal Agencies

(p.152) Chapter 6 The Preemption War in the Federal Agencies
The Preemption War

Thomas O. McGarity

Yale University Press

This chapter describes the quiet effort by several federal agencies during the George W. Bush administration to preempt state common law litigation through aggressive administrative interpretations of federal regulatory laws in informal contexts largely out of public view. In most cases, this represented a dramatic shift from past agency practice. Perhaps for this reason, the agencies buried these new interpretations within lengthy preambles to regulations, sometimes without allowing an effective opportunity for public comment, in a process that Professors Sam Issacharoff and Catherine Sharkey have referred to as “backdoor federalization.” After taking a quick look at a short-lived attempt by the FRA to expand the range of its preemptive power during the second half of the Clinton administration, this chapter visits the three most prominent Bush administration initiatives in the contexts of food labeling regulations, automobile roof crush rules, and rules for mattress flammability.

Keywords:   quiet effort, federal agencies, Bush administration, past agency practice, Sam Issacharoff, Catherine Sharkey, backdoor federalization, Clinton administration

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