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Preemption and Theories of Federalism

PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM'S CORE QUESTION, W. Buzbee, ed., Cambridge University Press, 2008

U of Michigan Public Law Working Paper No. 98

17 Pages Posted: 17 Nov 2007 Last revised: 28 Feb 2012

Robert R. M. Verchick

Loyola University New Orleans College of Law

Nina A. Mendelson

University of Michigan Law School

Abstract

Today's legal debates about federalism, as it applies to issues of health and safety and to the environment, are often debates about statutory preemption. This essay focuses on Congress's preemption power and examines the most common legal and theoretical issues surrounding its use. The two most important questions about preemption are related. The first is for the lawmaker: When, or in what way, should state laws be preempted? The second is for the judge: How do you know that state law has been preempted? This essay examines both questions. On the subject of congressional choice, the authors assess the justifications commonly offered for and against preemption, as well as for cooperative, or "power-sharing" arrangements between the federal and state governments. On the subject of judicial review, the authors investigate the constitutional and practical arguments for the common presumptions that underlie many, but not all, court decisions, including the on-again-off-again "clear" evidence rule. The essay devotes attention to three particularly difficult types of preemption cases that fuel much of today's controversy: cases involving asserted preemption by agency action, cases involving areas of traditional federal or state concern, and cases involving statutory "savings" clauses. In the end, the authors observe a general lack of coherence in preemption principles and judicial rules as applied, setting the stage for a broader debate on this important subject.

Keywords: federalism

JEL Classification: K40

Suggested Citation

Verchick, Robert R. M. and Mendelson, Nina A., Preemption and Theories of Federalism. PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM'S CORE QUESTION, W. Buzbee, ed., Cambridge University Press, 2008; U of Michigan Public Law Working Paper No. 98. Available at SSRN: https://ssrn.com/abstract=1030597

Robert Verchick (Contact Author)

Loyola University New Orleans College of Law ( email )

7214 St. Charles Ave., Box 901
Campus Box 901
New Orleans, LA 70118
United States

Nina Mendelson

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-936-5071 (Phone)
734-763-9375 (Fax)

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