Rejecting the Touchstone: Complete Preemption and Congressional Intent after Beneficial National Bank v. Anderson

72 Pages Posted: 6 Feb 2008

See all articles by Margaret Tarkington

Margaret Tarkington

Indiana University Robert H. McKinney School of Law

Abstract

The paper examines complete preemption - a jurisdictional doctrine that allows for removal based on a federal preemption defense contrary to the well-pleaded complaint rule. The doctrine was expanded by the Supreme Court in 2003 in Beneficial National Bank v. Anderson. This paper explores efficiency, separation of powers, and federalism problems created by Anderson, both generally and in the context of a specific statutory scheme - the Carmack Amendment. The paper then offers a new framework, modeled on concurrent jurisdiction case law, that ensures reliance on congressional intent but still allows a narrowly defined area for the judiciary to provide federal defensive removal where necessary to effectuate specific congressional purposes.

Keywords: complete preemption, federal courts, well-pleaded complaint rule, civil procedure, separation of powers, federalism, removal

Suggested Citation

Tarkington, Margaret, Rejecting the Touchstone: Complete Preemption and Congressional Intent after Beneficial National Bank v. Anderson. South Carolina Law Review, Vol. 59, p. 225, 2008, Available at SSRN: https://ssrn.com/abstract=1090655

Margaret Tarkington (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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