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

This book examines the theory, law, and reality of preemption choice.

William W. Buzbee (Edited by)

9780521888059, Cambridge University Press

Hardback, published 15 December 2008

336 pages
22.9 x 15.2 x 2.2 cm, 0.54 kg

"...truly eye-opening...a worthwhile investment...accessible...strongly recommended reading for the actual players in the federal government, serving across the legislative, executive, and judicial branches, who make the decisions regarding preemption with state and local officials and their constituents have to live..."
--Staci L. Beavers, California State University San Marcos, The Law and Politics Book Review [Vol. 19 No. 5 (May 2009)]

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

Part I. Federalism Theory, History, and Pre-emption Variables: 1. Preemption and theories of federalism Robert Verchick and Nina Mendelson
2. From dualism to polyphony Robert A. Schapiro
3. Preemption and regulatory failure risks David C. Vladeck
Part II. The Layered Government Norm: 4. The State Attorney General and preemption Trevor W. Morrison
5. Federal floors, ceilings, and the benefits of federalism's institutional diversity William W. Buzbee
Part III. Judicial Treatment and Interpretative Choice: 6. Supreme Court preemption doctrine Chris Schroeder
7. When Congress goes unheard: savings clauses' rocky judicial reception Sandy Zellmer
8. Federal pre-emption by inaction Robert L. Glicksman
9. Process-based preemption Bradford R. Clark
10. Preemption by federal agency action William Funk
Part IV. Preemption Tales from the Field: 11. The regulation-common law feedback loop in non-preemptive regimes Thomas O. McGarity
12. Delegated federalism versus devolution: some insights from the history of the water pollution control William L. Andreen
13. Adaptive environmental federalism David E. Adelman and Kirsten H. Engel
Conclusion: the menu of preemption choice variables William W. Buzbee.

Subject Areas: Laws of Specific jurisdictions [LN], Politics & government [JP]