Law Commons^™

Preempting Private Prisons, Christopher Matthew Burgess

Washington Law Review

In 2019 and 2021, respectively, California and Washington enacted laws banning the operation of private prisons within each state, including those operated by private companies in contracts with the federal government. Nevertheless, the federal government continues to contract with private prisons through Immigrations and Customs Enforcement for the detention of non-United States citizens. In 2022, the Ninth Circuit Court of Appeals held in GEO Group, Inc. v. Newsom that federal immigration law preempted California’s private prison ban.

Preemption—when federal law supersedes state law—is a doctrinal thicket. Federal courts analyze preemption issues in multiple different ways in a particular case, often …

Rightsizing Local Legislatures, Brenner M. Fissell

Utah Law Review

Local councils, boards, and commissions have all the lawmaking powers of a legislature—including the power to criminalize conduct—but they are far too small to deserve them. With an average size of only four members, local legislatures depart from the norm observable at all other levels of government. Only in the past few years have legal scholars turned their attention to the institutional design of these bodies, but this developing literature has yet to address their most striking feature—their small size.

This Article takes up this project. It claims that local microlegislatures are comparatively unrepresentative and undemocratic, and that their size …

How Can Federal Actors Compete On Noncompetes? Examining The Need For And Possibility Of Federal Action On Noncompetition Agreements, Robert Mcavoy

Dickinson Law Review (2017-Present)

Employees have been frustrated by the restrictiveness of noncompete agreements and confused about their enforceability for decades. The added complication of choice-of-law provisions in employment contracts with noncompetes creates a sea of unpredictability for both employees and employers.

Each state applies its own policy to noncompete agreements. While every state treats noncompetes differently than typical contract provisions, a broad spectrum exists between the states that are friendly and those that are hostile to the enforcement of noncompetes. Employees and employers often fail to understand whether their noncompete is enforceable under the jurisdiction chosen by the contract, and courts override choice-of-law …

Putting A Gag On Farm Whistleblowers: The Right To Lie And The Right To Reamin Silent Confront State Agricultural Protectionism, Rita-Marie Cain Reid, Amber L. Kingery

Journal of Food Law & Policy

Whistleblowers play an important role in filling gaps in government food safety systems. Unfortunately, several dominant food-producing states have pursued legislative initiatives that punish farm whistleblowers and silence investigative tactics. First, this research describes various state legislative initiatives that curb criticism of agriculture. The work analyzes the federal food safety system and how these protections limiting agricultural criticism contravene that food safety net. Further, the research analyzes the free speech concerns in the newest protectionist laws. The analysis recommends strategies and future research to improve agricluture safety and protect free speech in an evolving food safety landscape.

State Vehicle Electrification Mandates And Federal Preemption, Matthew N. Metz, Janelle London

Michigan Journal of Environmental & Administrative Law

By requiring that new vehicles sold after a certain date be electric, states can lower drivers’ vehicle operating costs, boost local employment, and lower electric rates. But there’s a widespread perception that states can’t take advantage of these opportunities because a state vehicle electrification mandate would be preempted by federal law.

Not so.

While the Federal Clean Air Act (CAA) prohibits state regulations “relating to” the control of emissions in motor vehicles, and the Federal Energy Policy and Conservation Act (EPCA) prohibits state regulations “related to” fuel economy standards, there is a strong rationale for federal courts to reject preemption …

Neglecting Nationalism, Gil Seinfeld

Articles

Federalism is a system of government that calls for the division of power between a central authority and member states. It is designed to secure benefits that flow from centralization and from devolution, as well as benefits that accrue from a simultaneous commitment to both. A student of modern American federalism, however, might have a very different impression, for significant swaths of the case law and scholarly commentary on the subject neglect the centralizing, nationalist side of the federal balance. This claim may come as a surprise, since it is obviously the case that our national government has become immensely …

21st Century Cures Act: The Problem With Preemption In Light Of Deregulation, Megan C. Andersen

University of Michigan Journal of Law Reform

The 21st Century Cures Act introduced innovative changes to the Food and Drug Administration’s regulatory processes. In an effort to address the slow, costly, and burdensome approval process for high-risk devices, the Cures Act modernized clinical trial data by allowing reviewers to determine whether devices merit expedited review and to consider post-market surveillance data in the premarket approval process. These changes will get life-saving devices to the people who need them faster than ever before. But the tradeoff is a greater risk of injury to the patient. The 2008 Supreme Court decision Riegel v. Medtronic, Inc., held that any …

Punitive Preemption And The First Amendment, Rachel Proctor May

San Diego Law Review

In recent years, state legislators have begun passing a new breed of “punitive” preemption laws–those that impose fines, civil and criminal sanctions, and other sanctions on local governments and their officials as a consequence of passing laws or enacting policies that are inconsistent with state laws. This represents a significant change from traditional preemption, under which a local government could enact laws based on its view of preempting state statutes and applicable state constitutional provisions and, if necessary, defend its interpretation in court. When punitive preemption prevents a local lawmaking process from taking place, the state forecloses a unique form …

Why The Copyright Act Expressly Preempts State-Level Public Performance Rights In Pre-1972 Recordings, James Fahringer

Michigan Telecommunications & Technology Law Review

Over the past several years, two former bandmates in the 1960s rock group, The Turtles, have initiated several lawsuits against the popular music streaming services, Pandora and Sirius XM, arguing that the band owns common law copyrights in the sound recordings of its songs, and that these state-level copyrights grant the band an exclusive public performance right in its sound recordings. If accepted, this argument has the potential to significantly distort federal copyright policy because states would not be constrained by any of the balancing features of the Copyright Act, including Digital Millennium Copyright Act (DMCA) safe harbors for Internet …

Soda Taxes As A Legal And Social Movement, David A. Dana, Janice Nadler

Northwestern Journal of Law & Social Policy

No abstract provided.

State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester

Michigan Law Review

The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission might …

Pushing An End To Sanctuary Cities: Will It Happen?, Raina Bhatt

Michigan Journal of Race and Law

Sanctuary jurisdictions refer to city, town, and state governments (collectively, localities or local governments) that have passed provisions to limit their enforcement of federal immigration laws. Such local governments execute limiting provisions in order to bolster community cooperation, prevent racial discrimination, focus on local priorities for enforcement, or even to a show a local policy that differs from federal policy. The provisions are in the forms of executive orders, municipal ordinances, and state resolutions. Additionally, the scope of the provisions vary by locality: some prohibit law enforcement from asking about immigration status, while others prohibit the use of state resources …

Preventing Preemption: Finding Space For States To Protect Consumers' Reputations, Elizabeth De Armond

All Faculty Scholarship

The Great Recession awoke state legislators to the power of individuals’ credit reports to hinder their economic opportunities. Many legislators would like to assuage the effects of bad historical events on the futures of the citizens that they represent. Among the topics they can address are employers’ use of credit reports, the presence of criminal record information in credit reports, and the toxic effects of identity theft and medical debt on credit reports. However, the federal Fair Credit Reporting Act’s preemptive effects must be acknowledged and negotiated. This article evaluates potential state legislative efforts against the FCRA’s preemption provisions and …

Preventing Preemption: Finding Freedom For States To Protect Their Citizens’ Personal History Information, Elizabeth De Armond

All Faculty Scholarship

The Great Recession awoke state legislators to the power of individuals’ credit reports to hinder their economic opportunities. Many legislators would like to assuage the effects of bad historical events on the futures of the citizens that they represent. Among the topics they can address are employers’ use of credit reports, the presence of criminal record information in credit reports, and the toxic effects of identity theft and medical debt on credit reports. However, the federal Fair Credit Reporting Act’s preemptive effects must be acknowledged and negotiated. This article evaluates potential state legislative efforts against the FCRA’s preemption provisions and …

Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash

Michigan Law Review

Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …

Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla

All Faculty Scholarship

This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly preemption questions have …

Preventing Preemption: Finding Freedom For States To Protect Their Citizens’ Personal History Information, Elizabeth De Armond

Elizabeth De Armond

Abandoning The Status Quo: Towards Uniform Application Of Special Immigrant Juvenile Status, Gregory Catangay

Gregory Catangay

The accompanying Article identifies and analyzes the causes of unequal application of the Special Immigrant Juvenile Status (SIJS) program and argues for a federal takeover of the program. The Article highlights the current immigration crisis and the plight of unaccompanied minors seeking a better life in the United States. These minors may be eligible for permanent legal status in the United States through the SIJS program. Although SIJS is a federal remedy, variations in state law and interpretation of SIJS requirements exclude eligible minors.

In order to be eligible for the SIJS program, a state trial court must find that …

Surviving Preemption In A World Of Comprehensive Regulations, Kyle Anne Piasecki

University of Michigan Journal of Law Reform Caveat

The Clean Air Act imposes a federal regulatory regime on a number of sources of air pollution. It does not, however, provide a ready means of relief to individuals harmed by air polluters. Nevertheless, many courts have held that the Clean Air Act preempts state common law tort claims that do provide a means to such relief. The disparate benefits of the Clean Air Act and common law tort claims may indicate different purposes and make court imposed preemption of common law tort claims improper. This Comment argues that the Savings Clause in the Clean Air Act and in parallel …

Mutual Pharmaceutical Co. V. Bartlett: A Need For “Explicit” Congressional Action And State Tort Law Reform, Kara A. Ritter

Kara A Ritter

No abstract provided.

The Creeping Federalization Of Wealth-Transfer Law, Lawrence W. Waggoner

Articles

This article appears in a symposium issue published by the Vanderbilt Law Review on The Role of Federal Law in Private Wealth Transfer. Federal authorities have little experience in making law that governs wealth transfers, because that function is traditionally within the province of state law. Although state wealth-transfer law has undergone significant modernization over the last few decades, all three branches of the federal government—legislative, judicial, and executive—have increasingly gone their own way. Lack of experience and, in many cases, lack of knowledge on the part of federal authorities have not dissuaded them from undermining well-considered state law. The …

The Communication Decency Act Gone Wild: A Case For Renewing The Presumption Against Preemption, Ryan J.P. Dyer

Seattle University Law Review

Since its inception, the Internet has disseminated the most vital commodity known to man—information. But not all information is societally desirable. In fact, much of what the Internet serves to disseminate is demonstrably criminal. Nevertheless, in the effort to unbind the “vibrant and competitive free market” of ideas on the Internet, Congress enacted section 230 of the Communications Decency Act, which essentially grants immunity to interactive computer service providers from liability for information provided by a third party. This Comment suggests that, in certain contexts, courts applying section 230 immunity should reexamine the preemptive effect Congress intended section 230 to …

Preemption And Textualism, Daniel J. Meltzer

Michigan Law Review

In the critically important area of preemption, the Supreme Court’s approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona’s immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court’s preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of “obstacle preemption” analysis. Recently, however, Justice Thomas has objected to the Court’s failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle …

Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein

Michigan Law Review

The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …

State Preemption Of Cable Television Regulation — Whatever Happened To The Sanctity Of Contract?, William M. Marticorena, Lynda E. Marticorena

Pepperdine Law Review

California Government Code section 53066.1 as recently amended gives cable television operators the right to obtain rate increases even in the face of the city or county franchisor opposition. Since most cable franchise agreements allow the franchisor to control rates for the cable service, there is a conflict between the statute and the franchise contracts. This article examines the issue of whether the statute violates the constitutional provisions against the impairment of contracts and whether the franchisor or a subscriber of the service has the necessary standing to assert the constitutional argument.

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

Health Care Providers Meet Erisa: Are Provider Claims For Misrepresentation Of Coverage Preempted, Jeffrey A. Brauch

Pepperdine Law Review

No abstract provided.

Federalism And Preemption In October Term 1999, Jonathan D. Varat

Pepperdine Law Review

No abstract provided.

Rediscovering A Principled Commerce Power , Douglas W. Kmiec

Pepperdine Law Review

No abstract provided.

Inside Agency Preemption, Catherine M. Sharkey

Michigan Law Review

A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue 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 …