Monday, March 19, 2007
Gil Seinfeld recently published The Puzzle of Complete Preemption in the Pennsylvania Law Review. It's helpful, concise, and thoughtful. Below is an excerpt from the introduction:
One can imagine a jurisdictional doctrine that treats preemption cases specially on the ground that the interest in uniformity features prominently when such statutes are at issue. When Congress preempts state law, one effect of its doing so is to homogenize the rule with which regulated entities are expected to comply. And we might want to make it particularly easy for cases calling for the interpretation of such statutes to get into the federal system, where they will be decided by courts that are thought most likely to interpret the law uniformly, thereby helping to secure the homogeneity Congress means to provide.But the Court has declined to connect the doctrine of complete preemption to the basic policies relevant to the existence and scope of federal question jurisdiction, including the interest in a uniform interpretation of federal law. Indeed, the complete preemption cases offer nothing in the way of systematic thinking about the uniformity interest and how it relates to federal jurisdiction. Complete preemption doctrine thus presents a puzzle: how and why has the Court come to afford the covered cases special jurisdictional treatment, and why is a doctrine that appears to call for justification by reference to foundational jurisdictional policies--the uniformity interest in particular--seemingly disconnected from them? This Article offers a close analysis of this unusual rule of federal jurisdiction in an effort to answer these questions. It makes the case that, due to its neglect of the core values underlying the vesting of federal question jurisdiction in the federal courts, the Court has established a doctrine that is unstable and unsound. This Article argues, further, that the doctrine might be satisfyingly remodeled by shaping it around the interest in a uniform interpretation of federal law.
Trevor Morrison's response to the article can be found here. -- RR