Wednesday, October 24, 2007
We posted here about Gil Seinfeld's article The Puzzle of Complete Preemption and interviewed him about it here. Paul E. McGreal responds to Seinfeld's position (and that of Trevor Morrison in Complete Preemption and the Separation of Powers) in his brand new paper In Defense of Complete Preemption, published in the University of Pennsylvania Law Review. The abstract follows.--Counseller
Recent writings by Professors Gil Seinfeld and Trevor Morrison criticize the Supreme Court's complete preemption doctrine as misguided and unconstitutional, respectively. Professor Seinfeld suggests reforming the doctrine around field preemption, and Professor Morrison rejects complete preemption as inconsistent with separation of powers. This response defends the Supreme Court's doctrine as it currently stands: A state law claim arises under federal law (and so may be removed to federal court) when a federal statute both preempts the claim and supplies an exclusive federal remedy. This doctrine is a sensible application of the well-pleaded complaint rule that prevents improper circumvention of federal question jurisdiction.