The Structure of Preemption Decisions

48 Pages Posted: 13 Sep 2009

See all articles by Garrick B. Pursley

Garrick B. Pursley

Florida State University - College of Law

Date Written: 2007


In this article I propose a new descriptive account of preemption decisions. Preemption has become something of an obsession in the legal academy. But despite extensive scholarship, preemption decisions themselves continue to defy easy description. Understanding the structure of preemption decisions is essential to understanding preemption’s growth and effects, especially its implications for federalism. It is also essential to understanding how, if at all, modern preemption doctrine should be changed. My goal is to show that preemption decisions are, without question, instances of constitutional adjudication. Preemption decisions are often misconceived as something else because they lack certain elements of the 'standard model' of constitutional adjudication. On the surface, they most often appear to be about statutory construction. Building on insights from metadoctrinal constitutional scholarship, I contend that this 'fit' problem is only apparent - preemption decisions follow the standard model, just not in a straightforward way: Courts in preemption decisions underenforce the pertinent constitutional norms. This, coupled with their inevitable statutory subject matter, explains why preemption decisions do not look like other kinds of constitutional decisions. Based on this reconceptualization of preemption, I suggest doctrinal revisions and avenues for further research.

Keywords: Search Papers, Constitutional Law, Preemption, Federalism

Suggested Citation

Pursley, Garrick, The Structure of Preemption Decisions (2007). Nebraska Law Review, Vol. 85, No. 4, pp. 201-248, 2007, Available at SSRN:

Garrick Pursley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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