Intrastate Preemption

64 Pages Posted: 20 Jun 2007 Last revised: 18 Jan 2008

See all articles by Paul A. Diller

Paul A. Diller

Willamette University College of Law


City policy experimentation is a catalyst for change at the state and national levels. From gay rights to the environment to public health, cities and other forms of local government are adopting new and innovative policies in the wake of inaction by the higher levels of government. The legality of these policies is frequently challenged, however, by claims that a city's ordinance has been preempted by state law. Despite the crucial importance of intrastate preemption to the question of city power, it has heretofore received scant academic attention. This paper demonstrates how, as currently applied, intrastate preemption dampens local policy innovation, which has a negative effect on the state and national political processes. It argues that state courts, drawing on their institutional advantages, should take a new approach to intrastate preemption that facilitates good-faith policy experimentation by cities while discouraging parochial and exclusionary municipal action.

Keywords: local, ordinance, preemption, state, government, trans fats, judicial review, gay rights, sex offenders, cities, counties, minimum wage

Suggested Citation

Diller, Paul A., Intrastate Preemption. Boston University Law Review, Vol. 87, No. 5, pp. 1113-76, December 2007, Available at SSRN:

Paul A. Diller (Contact Author)

Willamette University College of Law ( email )

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