This book examines the theory, law, and reality of preemption choice. The Constitution's federalist structures protect states' sovereignty but also create a powerful federal government that can preempt and thereby displace the authority of state and local governments and courts to respond to a social challenge. Despite this preemptive power, Congress and agencies have seldom preempted state power. Instead, they typically have embraced concurrent, overlapping power. Recent legislative, agency, and court actions, however, reveal an aggressive use of federal preemption, sometimes even preempting more protective state law. Preemption choice fundamentally involves issues of institutional choice and regulatory design: should federal actors displace or work in conjunction with other legal institutions? This book moves logically through each preemption choice step, ranging from underlying theory to constitutional history, to preemption doctrine, to assessment of when preemptive regimes make sense and when state regulation and common law should retain latitude for dynamism and innovation.
• Federalism debates, an area of great legal ferment for two decades • Tort reform debates, where changes preempting state common law have fuelled deregulatory debates • Growing scholarly discourse in the US and EU regarding countervailing strengths of rigid, predictable law and legal regimes
Part I. Federalism Theory, History, and Pre-emption Variables: 1. Preemption and theories of federalism Robert Verchick and Nina Mendelson; 2. From dualism to polyphony Robert A. Schapiro; 3. Preemption and regulatory failure risks David C. Vladeck; Part II. The Layered Government Norm: 4. The State Attorney General and preemption Trevor W. Morrison; 5. Federal floors, ceilings, and the benefits of federalism's institutional diversity William W. Buzbee; Part III. Judicial Treatment and Interpretative Choice: 6. Supreme Court preemption doctrine Chris Schroeder; 7. When Congress goes unheard: savings clauses' rocky judicial reception Sandy Zellmer; 8. Federal pre-emption by inaction Robert L. Glicksman; 9. Process-based preemption Bradford R. Clark; 10. Preemption by federal agency action William Funk; Part IV. Preemption Tales from the Field: 11. The regulation-common law feedback loop in non-preemptive regimes Thomas O. McGarity; 12. Delegated federalism versus devolution: some insights from the history of the water pollution control William L. Andreen; 13. Adaptive environmental federalism David E. Adelman and Kirsten H. Engel; Conclusion: the menu of preemption choice variables William W. Buzbee.