Journal of Air Law and Commerce


One of the primary challenges facing the American aviation industry is the issue of federal preemption. Although Congress has a long history of heavy involvement in regulating the aviation industry, the Federal Aviation Act (FAAct) does not include an express preemption provision, leaving states, courts, and industry members with little guidance about the proper reach of federal and state regulations. The circuit courts are sharply divided on their approaches and answers to this question. The issue of preemption is especially important in the context of aviation manufacturing, where the federal government has prescribed a litany of different safety standards, but state law product liability claims continue to be governed by state law standards of care. Manufacturers are therefore subjected to a variety of potential requirements across each state, which is problematic for a number of reasons.

Exacerbating the issue, the Supreme Court recently declined to hear two cases regarding FAAct preemption, each from a different side of the circuit split. Until this split is resolved, in the interest of uniformity and certainty, undecided circuits should adopt the Second Circuit’s field preemption approach and reject the Third Circuit’s conflict preemption approach. Field preemption is more consistent with both the intended purpose of the FAAct and the unique nature of the aviation industry.

This Comment will analyze the differing approaches taken by the circuit courts and will make the argument that the federal design regulations establish a standard of care which should be integrated into various state law claims. Uniformity is necessary for the aviation industry given its interconnection with interstate commerce and will provide clarity for both manufacturers and courts. Finally, this Comment will explain why and how other circuit courts should adopt the field preemption approach while awaiting Supreme Court guidance.