Hazard on Preemption in Products Liability Law

Geoff Hazard has published an article called "Quasi-Preemption: Nervous Breakdown in Our Constitutional System," 84 Tulane L. Rev. 1143 (2010). Geoff points to the hodgepodge of Supreme Court decisions on preemption with respect to drugs and medical devices and calls out Congress and the agencies for failing to think more deeply about preemption. Here's an excerpt:

The result, evident from the prevailing pattern, is: Let the courts work it out ad hoc. That resolution is often resorted to by the courts themselves, including the Supreme Court, in decisions that often appear merely ad hoc. Dealing more efficiently and effectively with problems of federal preemption would be expensive and would require much more attention and self-discipline on the part of Congress, the Executive, and the agencies.