Abstract

http://ssrn.com/abstract=1926199
 


 



Preemption and Choice-of-Law Coordination


Erin A. O'Hara O'Connor


Vanderbilt University - Law School; Gruter Institute for Law and Behavioral Research

Larry E. Ribstein (Deceased)


University of Illinois College of Law; PERC - Property and Environment Research Center

March 28, 2012

Michigan Law Review, Forthcoming
Illinois Program in Law, Behavior and Social Science Paper No. LBSS11-33
Vanderbilt Law and Economics Research Paper No. 12-11
Vanderbilt Public Law Research Paper No. 12-12

Abstract:     
The scope of federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that the courts purport to interpret Congressional intent when often Congress never considered the particular preemption question at issue. This article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where a federal law can serve a coordinating function but Congressional intent regarding preemption is unclear, we propose that courts consider whether the states have effectively allocated sovereign authority among themselves through choice-of-law rules. Where states have achieved such "horizontal coordination," Congress often has little need to usurp the states' role as laboratories for experimenting with potentially diverse substantive laws. Our approach would help to promote a “healthy federalism” in that it encourages courts to preserve the benefits of local and state sovereignty while simultaneously enabling federal statutes to coordinate US law where necessary. We apply our proposed approach to several areas where the courts have struggled with their poorly constructed preemption analyses to show how our approach might improve preemption decisions. Although our approach provides a conceptually obvious, and therefore elegant, solution to many preemption problems, to date it has been entirely unexplored.

Available at SSRN: http://ssrn.com/abstract=1926199 or http://dx.doi.org/10.2139/ssrn.1926199

Number of Pages in PDF File: 73

Keywords: preemption, choice of law, federalism, coordination

JEL Classification: K20, K22, K23, K32, K40

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Date posted: September 12, 2011 ; Last revised: April 3, 2012

Suggested Citation

O'Hara O'Connor, Erin A. and Ribstein (Deceased), Larry E., Preemption and Choice-of-Law Coordination (March 28, 2012). Michigan Law Review, Forthcoming; Illinois Program in Law, Behavior and Social Science Paper No. LBSS11-33; Vanderbilt Law and Economics Research Paper No. 12-11; Vanderbilt Public Law Research Paper No. 12-12. Available at SSRN: http://ssrn.com/abstract=1926199 or http://dx.doi.org/10.2139/ssrn.1926199

Contact Information

Erin A. O'Hara O'Connor
Vanderbilt University - Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-3025 (Phone)
615-322-6631 (Fax)
Gruter Institute for Law and Behavioral Research
158 Goya Road
Portola Valley, CA 94028
United States
Larry Edward Ribstein (Deceased) (Contact Author)
University of Illinois College of Law ( email )
504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
217-244-9881 (Phone)
217-244-1478 (Fax)
PERC - Property and Environment Research Center
2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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