Although Erie Railroad v. Tompkins put an end to the "general federal common law," a form of general common law lives on in admiralty. The interaction of that law with state regulatory authority in maritime cases has given rise to one of the thorniest questions in federal courts law -- the problem of maritime preemption. Because admiralty law remains largely a "brooding omnipresence over the sea," maritime preemption affords a unique opportunity to explore the implications of both pre- and post-Erie approaches to judge-made law for our modern system of federalism. In this article, Professor Young proposes that the present approach to maritime preemption should be abandoned. That approach--under which the general maritime law made by federal courts almost always preempts state law--has never crystallized into a coherent or workable rule. And any broad rule of maritime preemption is inconsistent not only with Erie, but also with the founding generation's assumptions about maritime law and with modern preemption doctrine. Professor Young concludes that admiralty law should have no preemptive effect, and that other mechanisms can adequately protect the legitimate federal interests that exist in maritime cases.
Ernest A. Young, Preemption at Sea, 67 George Washington Law Review 273-358 (1999)