Preemption Choice The Theory, Law, and Reality of Federalism's Core Question

Author: William Buzbee
Publisher: Cambridge University Press
ISBN: 9780521888059
Published In: March 2009
Format: Hardback
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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This book examines the theory, law, and reality of pre-emption choice. The Constitution’s federalist structures protect states’ sovereignty but also create a powerful federal government that can pre-empt and thereby displace the authority of state and local governments and courts to respond to a social challenge. Despite this pre-emptive power, Congress and agencies have seldom pre-empted state power. Instead, they typically have embraced concurrent, overlapping power.

Recent legislative, agency, and court actions, however, reveal a newly aggressive use of federal pre-emption, sometimes even pre-empting more protective state law. Pre-emption choice fundamentally involves issues of institutional choice and regulatory design: should federal actors displace or work in conjunction with other legal institutions? This book moves logically through each pre-emption choice step, ranging from underlying theory to constitutional history, to pre-emption doctrine, to assessment of when pre-emptive regimes make sense and when state regulation and common law should retain latitude for dynamism and innovation.

Federalism debates, an area of great legal ferment for two decades
Tort reform debates, where changes preempting state common law have fueled recent deregulatory debates
Growing scholarly discourse in the US and EU regarding countervailing strengths of rigid, predictable law and legal regimes

Contents:: Part I. Federalism Theory, History, and Pre-emption Variables:
1. Preemption and theories of federalism Robert Verchick and Nina Mendelson; 2. From dualism to polyphony Robert A. Schapiro; 3. Preemption and regulatory failure risks David C. Vladeck; Part II. The Layered Government Norm:
4. The State Attorney General and pre-emption Trevor W. Morrison; 5. Federal floors, ceilings, and the benefits of federalism’s institutional diversity William W. Buzbee; Part III. Judicial Treatment and Interpretative Choice:
6. Supreme Court preemption doctrine Chris Schroeder; 7. When Congress goes unheard: savings clauses’ rocky judicial reception Sandy Zellmer; 8. Federal pre-emption by inaction Robert L. Glicksman; 9. Process-based pre-emption Bradford R. Clark; 10. Pre-emption by federal agency action William Funk; Part IV. Pre-emption Tales from the Field:
11. The regulation-common law feedback loop in non-pre-emptive regimes Thomas O. McGarity; 12. Delegated federalism versus devolution: some insights from the history of the water pollution control William L. Andreen; 13. Adaptive environmental federalism David E. Adelman and Kirsten H. Engel; Conclusion: the menu of pre-emption choice variables William W. Buzbee.