April 22, 2009

"I will return"

Sorry I've been AWOL.  The second edition of the book turned into a massive --and interesting -- effort.  One of the things I found particularly fascinating was in those areas where, historically, text has not mattered (e.g., implied causes of action, implied preemption), the vast majority of the justices do not find it troubling; Thomas, in a long recent dissent, questioned why implied preemption should ever be found and made a strong "this is against the textual grain of our precedents" argument.  We now have a chapter entitled something like, "when purpose and intent still win" and it raises some interesting issues.

The other thing I saw that was fascinating was use by state courts of federal preemption principles, but applying them to state statutes.  Does a state statute "preempt" a local zoning ordinance, for instance.  The policies for federal preemption are, of course, largely absent in that area, and so you had a few courts saying "federal preemption the right approach" but many courts did not. 

Finally, for now, I'll note the other interesting thing: you seldom had courts talk about how statutes in derogation of the common law should be narrowly construed when they were examining preemption. That seems to be a problem, and one I found only a few cases trying to harmonize/tackle.

Anyhow, it's done, and I expect to start back up soon.  Thank you for those of you who have sent me notes and links -- I have a pile of stuff to wade through....

April 22, 2009 in Books | Permalink | Comments (0) | TrackBack