Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question

by Edited by William W. Buzbee

• ISBN13: 9780521888059
• ISBN10: 0521888050
• Edition: 1st
• Format: Hardcover
• Copyright: 2008-12-15
• Publisher: Cambridge University Press

Summary

This book examines the theory, law, and reality of pre-emption choice. The Constitution's federalist structures protect states' sovereignty but also create a powerful federal government that can pre-empt and thereby displace the authority of state and local governments and courts to respond to a social challenge. Despite this pre-emptive power, Congress and agencies have seldom pre-empted state power. Instead, they typically have embraced concurrent, overlapping power. Recent legislative, agency, and court actions, however, reveal a newly aggressive use of federal pre-emption, sometimes even pre-empting more protective state law. Pre-emption 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 pre-emption choice step, ranging from underlying theory to constitutional history, to pre-emption doctrine, to assessment of when pre-emptive regimes make sense and when state regulation and common law should retain latitude for dynamism and innovation.

Table of Contents

Contributors	p. vii
Acknowledgments	p. xv
Introduction	p. 1
Federalism Theory, History, and Preemption Variables
Preemption and Theories of Federalism	p. 13
From Dualism to Polyphony	p. 33
Preemption and Regulatory Failure Risks	p. 54
The Layered Government Norm
The State Attorney General and Preemption	p. 81
Federal Floors, Ceilings, and the Benefits of Federalism's Institutional Diversity	p. 98
Judicial Treatment and Interpretive Choice
Supreme Court Preemption Doctrine	p. 119
When Congress Goes Unheard: Savings Clauses' Rocky Judicial Reception	p. 144
Federal Preemption by Inaction	p. 167
Process-Based Preemption	p. 192
Preemption by Federal Agency Action	p. 214
Preemption Tales from the Field
The Regulation-Common Law Feedback Loop in Nonpreemptive Regimes	p. 235
Delegated Federalism Versus Devolution: Some Insights from the History of Water Pollution Control	p. 257
Adaptive Environmental Federalism	p. 277
Conclusion: The Menu of Preemption Choice Variables	p. 301
Index	p. 305
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