As the powers of the federal and state governments overlap (Nelson, 2000, p.225), the preemption issue is regarded as one of the most important and debatable ones. Deborah Ballam investigated the history of attitudes to preemption in the United States and The Occupational Safety and Health Act (OSHA) and its preemptive effect in her article “The Occupational Safety and Health Act’s Preemptive Effect on State Criminal Prosecutions of Employers for Workplace Death and Injuries” (1988). The article appears to be convincing and informative, as its argument is based on numerous relevant pieces of evidence.
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In the introductory part, the author lists some conditions that led to the enacting of OSHA. This act is defined as the first attempt to launch a federal program that regulates issues related to workers’ safety at all workplaces in the United States. Evaluating the merits of the preemption argument related to OSHA and state criminal prosecutions is considered the purpose of the article. After defining the main topic covered in the article, Ballam goes on to investigate the history of accepting the doctrine of preemption in the United States. Until the 1930s, the Court regarded the preemption as an automatic process (Ballam, 1988, p. 3). Since the 1930s, The Court changed its position, and preemption was related to the occurrence of the actual conflict between federal and state laws. Ten years later, the tendency of federal interests occupying central position again gained its power and lasted up till the early 1970s when the state’s rights again occupied the paramount position. Each of the periods reflecting different changes in the position on preemption is illustrated by the corresponding cases (e.g., Charleston & Western Carolina Railway v. Varnville Furniture Co, Mintz v. Baldwin, Goldstein v. California, etc.). The decisions made by the Court regarding these cases reflected the shifts in the government’s position on the issue.
The second part of the article explores the preemptive effect of OSHA on state criminal prosecutions. First, the criteria for applying preemption are investigated. Three official ways and one additional way of occurrence of the preemption are defined. Then section 667 and express preemption of state criminal prosecutors are discussed. The discussion of the issue is illustrated by several cases and official positions of lower federal and state courts. The conclusion made based on the analysis of the above-mentioned issue confirms the fact that neither OSHA’s express preemption provision nor OSHA’s penalty provisions expressly preempt state criminal prosecutions for fatal incidents and traumas among workers (Ballam, 1988, p. 21). The author explores two ways of occurrence of preemption through intent to occupy the whole field.
After analyzing preemption through conflict with federal law, Ballam comes to the conclusion that state prosecution for fatal incidents and traumas among workers does not conflict with OSHA’s ability to enact federal criminal penalties (Ballam, 1988, p. 25). The final factor considered by the author is the Court’s current views on federalism illustrate with several examples of cases related to the issue. The conclusion declared by the author proves that OSHA does mot preempt state criminal prosecutions of employers for deaths and injuries at work. OSHA’s express preemption section is considered addressing only the publication of particular safety standards. All other issues are open to state action.
Obviously, the author’s primary goal in this piece of writing was to explore the preemptive effect of OSHA and make an appropriate conclusion based on the collected evidence. To achieve the goal, Ballam put much effort into investigating the issue and presenting all of the information guiding the readers to logical and well-grounded conclusions.
The audience, which Deborah Ballam is reaching through her article, includes American lawyers interested in the investigation of the history of preemption in the United States and OSHA’s preemptive effect on state criminal prosecutions of employers. The fact that the author targets lawyers can be proved by a great number of words belonging to the professional vocabulary used in the article (e.g., criminal charges, prosecutors, defendants, express preemption, etc.). Besides, Ballam supports her arguments with numerous cases famous among American lawyers.
The article appears to be very informative, as it presents the most important facts from the history of preemption, numerous examples of cases with their detailed analysis, and relevant information about the current situation. The author made the article rather persuasive by using inductive reasoning, as the conclusion is based on the evidence collected while creating it.
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The article supports the concepts as presented in the textbook and helps the students to understand these concepts better and see up-to-life illustrations to them.
Ballam’s article proves the claim that OSHA has no particular preemptive effect on the state regulation of incidents at workplaces and leaves all issues open to state action. In my opinion, the author’s winning strategy based on presenting relevant evidence and making logical conclusions makes the article persuasive. While reading it, I came to the same conclusions the author did. Therefore, I agree with the main argument of the article and think it is well developed and consistent.
Ballam, D. (1988). The Occupational Safety and Health Act’s preemptive effect on state criminal prosecutions of employers for workplace death and injuries. American Business Law Journal, 26(1), 1-27.
Nelson, C. (2000). Preemption. Virginia Law Review, 86(2), 225-305.