Abstract

http://ssrn.com/abstract=1838245
 


 



Differential Preemption


Ronen Perry


University of Haifa - Faculty of Law

February 28, 2011

Ohio State Law Journal, Vol. 72, 2011

Abstract:     
Preemption is a constitutional law doctrine whereby state and local authorities are deprived of their powers in particular areas governed by federal law. In setting the boundaries of state sovereignty within a federal polity, it constitutes one of the pillars of the federal political structure. Viewed differently, preemption is one of the strongest legal unification methods. Recent cases like Williamson v. Mazda and Bruesewitz v. Wyeth highlight the growing salience of preemption in contemporary legal discourse. The Article focuses on a highly important and distinctive niche in preemption debate, namely the interrelation between federal maritime law and state law. It offers an original theoretical framework for maritime preemption analysis, which supports a judicial heuristic standing in stark contrast to that advocated by prominent scholars as the late Professor David Currie. Although maritime preemption remains the source of inspiration and the focal point of the Article, the implications of the main idea are far-reaching. It may be pertinent to allocation of lawmaking powers in other areas and to other types of unification and harmonization methods, and may be applicable in other federal and federal-like systems, such as the European Union.

The Article contends that the preemptive force of federal maritime law should relate to prospective litigants’ ability to pre-select the law applicable to their interaction. Maritime preemption is generally based on the need for uniformity. However, and this is crucial, uniformity is not an end in itself, but a means for the protection and advancement of more fundamental federal interests. As the underlying justifications for uniformity weaken, so does the need for preemption. The Article ascertains that if the parties in a particular type of cases can easily select applicable law before the occurrence of the legally relevant incident, uniformity becomes unnecessary. Moreover, where pre-selection based on individual preferences is possible, uniformity may be detrimental to the common good, because it curtails regulatory competition. Under these circumstances, uniformity-driven preemption of state law should be avoided. If, on the other hand, pre-selection is impossible or impractical, the need for uniformity resurfaces, and preemption might be warranted.

Number of Pages in PDF File: 58

Keywords: tort law, contract law, preemption, constitutional law, unification, uniformity, federalism, jurisdiction, maritime law, maritime preemption, Oil Pollution Act, Jensen

JEL Classification: K00, K12, K13

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Date posted: May 15, 2011 ; Last revised: May 18, 2011

Suggested Citation

Perry, Ronen, Differential Preemption (February 28, 2011). Ohio State Law Journal, Vol. 72, 2011. Available at SSRN: http://ssrn.com/abstract=1838245

Contact Information

Ronen Perry (Contact Author)
University of Haifa - Faculty of Law ( email )
Mount Carmel
Haifa, 31905
Israel
HOME PAGE: http://weblaw.haifa.ac.il/en/faculty/perry/
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