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Complete Preemption and the Separation of Powers

11 Pages Posted: 7 Mar 2007  

Trevor W. Morrison

New York University School of Law


This is a short response, published in Pennumbra (the online companion to the University of Pennsylvania Law Review), to Gil Seinfeld's recent article, "The Puzzle of Complete Preemption."

I first sound some notes of agreement with Professor Seinfeld's critique of the Supreme Court's complete preemption doctrine. I then turn to his proposed reshaping of the doctrine around the interest in federal legal uniformity. Although certainly more satisfying than the Court's account, Professor Seinfeld's refashioning of the doctrine raises a number of new difficulties. In particular, it invites the federal courts to engage in a range of line-drawing exercises to which they may not be especially well suited. I conclude by suggesting that the difficulties raised by Professor Seinfeld's refashioning support the view that complete preemption should depend on congressional intent, not judicial invention.

Keywords: federal courts, jurisdiction, preemption, separation of powers

Suggested Citation

Morrison, Trevor W., Complete Preemption and the Separation of Powers. University of Pennsylvania Law Review, Vol. 155, p. 186, 2007; Cornell Legal Studies Research Paper No. 07-003. Available at SSRN:

Trevor W. Morrison (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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