Trapped in the Amber: State Common Law, Employee Rights, and Federal Enclaves
51 Pages Posted: 8 Jun 2013
Date Written: 2011
The Constitution empowers Congress, with state consent, to establish federal enclaves for legitimate purposes including military bases and national parks. To date, Congress has established 5,000 federal enclaves covering nearly 30% of the United States. More than a million Americans live and work in such places. When an enclave is created, all state authority over it is terminated and the federal government assumes exclusive jurisdiction. State laws existing at the time of cession continue in effect until abrogated by Congress. But post-acquisition changes in state law, including common law rules, are not part of the body of laws absent congressional action. Congress has failed to implement modern law in the areas of employment law, housing law, consumer protection, contracts, agency and non-injury torts. In these arenas, outmoded 19th century state laws prevail in most enclaves. I explore the perplexing state of enclave private law, placing a particular emphasis on labor law. I offer a two-pronged solution. First, I argue that because enclaves are federal instrumentalities, enclave private law falls within the ambit of federal common law. Second, I propose that Congress enact a statute applying contemporary state labor statutes to enclave workers.
Keywords: federal enclaves, federalism, separation of powers, choice of law, conflict of laws
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