Preemption and Choice-of-Law Coordination

73 Pages Posted: 12 Sep 2011 Last revised: 3 Apr 2012

See all articles by Erin A. O'Hara O'Connor

Erin A. O'Hara O'Connor

Florida State University - College of Law; Gruter Institute for Law and Behavioral Research

Larry E. Ribstein

University of Illinois College of Law (deceased); PERC - Property and Environment Research Center

Date Written: March 28, 2012


The scope of federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that the courts purport to interpret Congressional intent when often Congress never considered the particular preemption question at issue. This article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where a federal law can serve a coordinating function but Congressional intent regarding preemption is unclear, we propose that courts consider whether the states have effectively allocated sovereign authority among themselves through choice-of-law rules. Where states have achieved such "horizontal coordination," Congress often has little need to usurp the states' role as laboratories for experimenting with potentially diverse substantive laws. Our approach would help to promote a “healthy federalism” in that it encourages courts to preserve the benefits of local and state sovereignty while simultaneously enabling federal statutes to coordinate US law where necessary. We apply our proposed approach to several areas where the courts have struggled with their poorly constructed preemption analyses to show how our approach might improve preemption decisions. Although our approach provides a conceptually obvious, and therefore elegant, solution to many preemption problems, to date it has been entirely unexplored.

Available at SSRN: or

Keywords: preemption, choice of law, federalism, coordination

JEL Classification: K20, K22, K23, K32, K40

Suggested Citation

O'Hara O'Connor, Erin A. and Ribstein, Larry Edward, Preemption and Choice-of-Law Coordination (March 28, 2012). Michigan Law Review, Forthcoming, Illinois Program in Law, Behavior and Social Science Paper No. LBSS11-33, Vanderbilt Law and Economics Research Paper No. 12-11, Vanderbilt Public Law Research Paper No. 12-12, Available at SSRN: or

Erin A. O'Hara O'Connor

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States


Gruter Institute for Law and Behavioral Research

158 Goya Road
Portola Valley, CA 94028
United States

Larry Edward Ribstein (Contact Author)

University of Illinois College of Law (deceased)

PERC - Property and Environment Research Center

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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