The Gravitational Force of Federal Law
51 Pages Posted: 17 Feb 2015 Last revised: 18 Mar 2016
Date Written: 2016
In the American system of dual sovereignty, states have primary authority over matters of state law. In nonpreemptive areas in which state and federal regimes are parallel — such as matters of court procedure, certain statutory law, and even some constitutional law — states have full authority to legislate and interpret state law in ways that diverge from analogous federal law. But, in large measure, they don’t. It is as if federal law exerts a gravitational force that draws states to mimic federal law even when federal law does not require state conformity. This paper is the first to explore the widespread phenomenon of federal law’s gravitational pull. The paper begins by identifying the existence of a gravitational force throughout a range of procedural and substantive law felt by a host of state actors, including state rulemakers, legislators, judges, and even people themselves. It then excavates some explanatory vectors to help understand and appreciate why federal law exerts a gravitational force. Finally, the paper considers some normative concerns with state acquiescence to the federal gravitational pull.
Keywords: gravity, gravitational, federalism, following, federal rules, bowers, marriage, title vii,
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