Law, College of


Date of this Version

Spring 2009


Published in Houston Law Review 45:5 (Spring 2009). Copyright 2009 Sandra Zellmer.


One can hardly dispute that preemption issues are complex and highly nuanced, involving both federalism and separation of powers---congressional prerogatives, agency competence, and judicial deference--as well as efficiency, equity, victim compensation, and cost-shifting objectives. By focusing specifically on cases involving statutory savings clauses, this Article makes a modest attempt to identify preemption patterns and principles from a discrete set of opinions issued by the Rehnquist and Roberts Courts through 2008. It undertakes a comparative analysis of case law in four areas: (1) the environment; (2) labor and employment; (3) products liability; and (4) agricultural practices. These four were chosen both because of the tremendous activity in these areas by all three branches of the federal government since the 1980s and because of their importance to federal-state relations. This study is, admittedly, neither a comprehensive survey nor an empirical analysis of all one hundred-plus preemption cases issued by the Rehnquist and Roberts Courts. Rather, it is more narrowly drawn in hopes of making sense of the Court's treatment of savings clauses and, by extension, its treatment of an important piece of evidence regarding congressional intent on preemption.

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