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Wednesday, May 18, 2011

Two on Preemption

Cathy Sharkey (NYU) has posted to SSRN Inside Agency Preemption.  The abstract provides:

A subtle shift has taken place in the mechanics of preemption, the doctrine used to determine when federal law displaces state law. In the past, Congress had been the leading actor, with courts and commentators focusing almost exclusively on the precise wording of its statutory directives as clues to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes - an ascendancy unchecked by the change in Presidential administrations. This Article confronts the profound implications for the administrative rulemaking process caused by the ascendancy of federal agencies in the preemption realm. Stakeholders with vested interests in preemption disputes, such as state governmental organizations and other representatives of state interests, state attorneys general, consumer and business-oriented organizations, and private litigants, can continue to ignore the preemptive rulemaking processes within federal agencies only at their peril.

As this Article further shows, those processes are, in and of themselves, rich areas of investigation. Taking a unique perspective "inside" the preemptive rulemaking processes within five major federal agencies that regulate in areas as diverse as health and safety, banking, and the environment, the Article presents the first look at agencies’ responses to President Obama’s Memorandum on Preemption and their efforts to ensure compliance with the relevant provisions of the Federalism Executive Order 13132 governing preemptive rulemaking.

With this empirical grounding in agency practice, the Article addresses possibilities for reform, including a novel attorney general preemption notification provision and a blueprint for external review of newly proposed internal oversight procedures. The specific reform measures are guided by the twin overarching goals of (1) creating a "home" within agencies for consideration of the federalism values at stake in preemptive rulemaking and ensuring participation in the rulemaking process by suitable representatives of the state regulatory interests; and (2) establishing a system of internal agency policing of the empirical and factual predicates to arguments for preemption, coupled with external oversight. This journey inside agency preemption charts preemption’s future path.

UPDATED:  Drug & Device Law discusses Sharkey's article here.

Ronen Perry (Haifa) has posted to SSRN Differential Preemption.  The abstract provides:

Preemption is a constitutional law doctrine whereby state and local authorities are deprived of their powers in particular areas governed by federal law. In setting the boundaries of state sovereignty within a federal polity, it constitutes one of the pillars of the federal political structure. Viewed differently, preemption is one of the strongest legal unification methods. Recent cases like Williamson v. Mazda and Bruesewitz v. Wyeth highlight the growing salience of preemption in contemporary legal discourse. The Article focuses on a highly important and distinctive niche in preemption debate, namely the interrelation between federal maritime law and state law. It offers an original theoretical framework for maritime preemption analysis, which supports a judicial heuristic standing in stark contrast to that advocated by prominent scholars as the late Professor David Currie. Although maritime preemption remains the source of inspiration and the focal point of the Article, the implications of the main idea are far-reaching. It may be pertinent to allocation of lawmaking powers in other areas and to other types of unification and harmonization methods, and may be applicable in other federal and federal-like systems, such as the European Union.

The Article contends that the preemptive force of federal maritime law should relate to prospective litigants’ ability to pre-select the law applicable to their interaction. Maritime preemption is generally based on the need for uniformity. However, and this is crucial, uniformity is not an end in itself, but a means for the protection and advancement of more fundamental federal interests. As the underlying justifications for uniformity weaken, so does the need for preemption. The Article ascertains that if the parties in a particular type of cases can easily select applicable law before the occurrence of the legally relevant incident, uniformity becomes unnecessary. Moreover, where pre-selection based on individual preferences is possible, uniformity may be detrimental to the common good, because it curtails regulatory competition. Under these circumstances, uniformity-driven preemption of state law should be avoided. If, on the other hand, pre-selection is impossible or impractical, the need for uniformity resurfaces, and preemption might be warranted.

--CJR

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