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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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Agencies, Juries, and the Public Interest

Agencies, Juries, and the Public Interest

(p.179) Chapter 7 Agencies, Juries, and the Public Interest
The Preemption War

Thomas O. McGarity

Yale University Press

This chapter focuses exclusively on the question of institutional competence, and the two chapters that follow examine the other arguments for and against preemption. Among other things, this chapter explores arguments about comparative strengths and weaknesses of common law courts and federal regulatory agencies in providing technical expertise, policymaking expertise, relevant information, common-sense judgment, and responsiveness to changing information and policies as they arise. The most vigorous argument for federal agency preemption of state common law claims is probably the “enormous comparative advantage” that federal agencies have over judges and juries in the expertise required to resolve highly technical questions of science, engineering, and economics that typically arise when federal regulatory requirements arguably come into conflict with common law duties. Proponents of preemption argue that regulatory agencies are able to call on expert resources and information-gathering abilities “that dwarf those of any trial jury.”

Keywords:   institutional competence, common law courts, federal regulatory agencies, federal agency preemption, highly technical questions

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