Most lawyers who have any familiarity with the law of federal preemption, and in particular the United States Supreme Court’s cases involving the preemption of state tort requirements, would freely admit that the law is a muddle. Beginning with the Court’s fractured 1992 decision in Cipollone v. Liggett Group, Inc.,¬†which was argued twice before it was decided, the Court has issued a series of decisions, some of them fractured and confusing, that have alternatively cheered and flummoxed the plaintiffs’ bar as well as product manufacturers, transportation companies, and other businesses that regularly rely on the preemption defense. Unfortunately, these cases–which are among the most hotly contested of all cases on the Supreme Court’s docket, judging by amicus participation–have produced significant confusion in the law of preemption generally. As someone who has participated¬†in many of these cases over the years since Cipollone, my purpose is to offer a few observations drawn from my own experience about some of the major disputed issues in preemption law today, including the proper role of courts in resolving preemption cases. I also hope to make a few broader points about the preemption doctrine that are often overlooked in the acrimonious debate over tort cases.. . .

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