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Vol 21 No 10 Oct/Nov 2016

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

Edited by: William Buzbee

ISBN13: 9781107402324
Published: May 2011
Publisher: Cambridge University Press
Country of Publication: USA
Format: Paperback (Hardback 2009)
Price: £29.99
Hardback edition , ISBN13 9780521888059



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This 2009 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.

Subjects:
Other Jurisdictions , USA
Contents:
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 pre-emption 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 pre-emption Bradford R. Clark
10. Pre-emption by federal agency action William Funk
Part IV. Pre-emption Tales from the Field: 11. The regulation-common law feedback loop in non-pre-emptive 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 pre-emption choice variables William W. Buzbee.