In Defense of Complete Preemption
University of Pennsylvania Law Review, PENNumbra, Vol. 156, p. 147, 2007
10 Pages Posted: 23 Oct 2007
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
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