Introduction and Conclusion, Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question


Emory Public Law Research Paper No. 09-84

Emory Law and Economics Research Paper No. 09-53

29 Pages Posted: 18 Dec 2009


This posting provides the covers and introductory pages, Introduction and Conclusion from the Preemption Choice book published by Cambridge University Press. The book takes a different approach to preemption than the usual focus on judicial preemption doctrine. Instead, prompted by increasingly aggressive executive branch assertions of preemptive power in recent years and a burgeoning body of preemption decisions in the courts, the book's chapters analyze preemption as fundamentally a question of regulatory design choice by numerous actors and institutions. Each chapter offers its own focus and analytical frame, but a theme explored throughout the book is that judges, policymakers and scholars assessing preemption choices should pay greater attention to the benefits of regulatory overlap and interaction, especially opportunities for regulatory learning. A place undoubtedly remains for preemptive regulation, but preemptive regimes also have costs.

The book starts in Part I with three chapters examining underlying federalism theory, history, and variables influencing policymakers' choice of whether to make federal law preemptive of state regulatory or common law. After Professors Robert Verchick and Nina Mendelson lay out central concepts and debates over preemption, especially in light of federalism theories, Professor Robert Schapiro explores the concept and benefits of "polyphonic federalism." Professor David Vladeck looks at the effects of preemptive regimes, especially on common law claims, in light of prevalent forms of regulatory failure. Part II offers two chapters exploring the "layered government norm," focusing on the politically prevalent choice to retain concurrent and overlapping federal and state regulation. Professor Trevor Morrison argues that the role of state attorneys general should be specially protected from preemption claims. Professor William Buzbee explores the distinctions between federal regulatory floors and ceilings, showing how floors preserve the benefits of institutional diversity. Part III focuses on judicial preemption doctrine and interpretive choices, including Professor Christopher Schroeder’s succinct canvassing of Supreme Court preemption doctrine, Professor Sandi Zellmer’s analysis of the frequent judicial failure to give weight to savings clauses, and Professor Robert Glicksman's chapter examining federal preemption arguments even in the face of federal inaction. This Part also includes a chapter by Professor Bradford Clark, who argues that due to the U.S. Constitution's procedural hurdles to creation of "supreme" federal law, preemption debates require close attention to the process generating claims of preemptive effect. Professor William Funk’s chapter explores the preemptive effects of agency actions. The closing Part IV starts with Professor Thomas McGarity’s chapter analyzing the "regulation-common law feedback loop" and the resulting mutual learning that is facilitated by non-preemptive regimes, while Professor Andreen offers insights from the experience of delegated program federalism under the Clean Water Act. The part's last chapter, co-authored by Professors David Adelman and Kirsten Engel, draws insights from biological adaptation and modern ecosystem theory for preemption choice, favoring regulatory regimes allowing for dynamism and adaptation. The book's closing chapter by Professor William Buzbee distills insights from the chapters to derive a menu of preemption choice variables.

Keywords: Federalism, preemption, Supremacy, preemptive, state attorneys general, climate change, inaction, greenhouse, cap-and-trade, obstacle, floors, ceilings, savings clauses, environment, innovation, hard look, statutory interpretation, Constitution, constitutional law, deference, administrative agency

Suggested Citation

Buzbee, William W., Introduction and Conclusion, Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question. PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM’S CORE QUESTION, William W. Buzbee, ed., Cambrigdge U. Press 2009, Emory Public Law Research Paper No. 09-84, Emory Law and Economics Research Paper No. 09-53, Available at SSRN:

William W. Buzbee (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
(202) 662-9402 (Phone)

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