The Puzzle of Complete Preemption
43 Pages Posted: 16 Jun 2007
This article examines the unusual doctrine of complete preemption, which permits the federal courts to exercise federal question jurisdiction over causes of action that are pleaded in state law terms, the well-pleaded complaint rule notwithstanding. The Supreme Court's decision in Beneficial National Bank v. Anderson (2003) clarified that a state law cause of action is "completely preempted" and, hence, removable to federal court when federal law provides the exclusive cause of action for the harm alleged. While this decision went a long way toward ending decades of confusion relating to the reach of the complete preemption rule, it did little to explicate its conceptual underpinnings. In particular, the Court failed to explain why cases implicating federal statutes that provide the exclusive cause of action for a particular kind of harm merit the attention of the lower federal courts, while cases implicating other kinds of federal defenses do not.
Of particular interest is the disconnect between complete preemption doctrine and the policy concerns animating the establishment of federal question jurisdiction. It has long been argued that federal courts ought to have jurisdiction to adjudicate cases involving questions of federal law because (among other reasons) federal courts are more likely to supply a uniform interpretation of that law. And, preemptive federal statutes typically serve, to varying degrees, to establish uniform legal rules. Yet even as the Court has facilitated access to the federal courts for cases involving preemptive (i.e. uniformity-producing) federal statutes, it has not attempted to justify this jurisdictional maneuver by reference to the federal courts' perceived superiority in providing a uniform interpretation of the law. The Article makes the case that the Court's inattention to the uniformity interest has led it astray, and it considers what the jurisprudence of complete preemption might look like were it reshaped in light of the relationship between preemption and uniformity.
Keywords: complete preemption, federal jurisdiction, removal jurisdiction
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