In Defense of Complete Preemption

University of Pennsylvania Law Review, PENNumbra, Vol. 156, p. 147, 2007

10 Pages Posted: 23 Oct 2007  

Paul E. McGreal

Creighton University School of Law

Abstract

Recent writings by Professors Gil Seinfeld and Trevor Morrison criticize the Supreme Court's complete preemption doctrine as misguided and unconstitutional, respectively. Professor Seinfeld suggests reforming the doctrine around field preemption, and Professor Morrison rejects complete preemption as inconsistent with separation of powers. This response defends the Supreme Court's doctrine as it currently stands: A state law claim arises under federal law (and so may be removed to federal court) when a federal statute both preempts the claim and supplies an exclusive federal remedy. This doctrine is a sensible application of the well-pleaded complaint rule that prevents improper circumvention of federal question jurisdiction.

Keywords: civil procedure, separation of powers, preemption, federal courts, jurisdiction, federalism

Suggested Citation

McGreal, Paul E., In Defense of Complete Preemption. University of Pennsylvania Law Review, PENNumbra, Vol. 156, p. 147, 2007. Available at SSRN: https://ssrn.com/abstract=1024042

Paul E. McGreal (Contact Author)

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States

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