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 …

Brief Of Amici Curiae In Support Of The United States: Moyle & Idaho V. United States, David S. Cohen, Greer Donley, Rachel Rebouché

Amici Briefs

This amicus brief, submitted to the Supreme Court in Moyle v. United States, argues that Moyle, and the impending circuit split surrounding it, is a symptom of a larger workability problem with the Dobbs v. Jackson Women’s Health Organization framework. Dobbs is already proving, in its brief existence, to be unworkable, and must be overturned. In short order, the Dobbs ruling has ushered in an era of unprecedented legal and doctrinal chaos, precipitating a fury of disorienting legal battles across the country. The Dobbs framework has created destabilizing conflicts between federal and state authorities, as in the current …

Municipal Law—A Wedge In Climate Initiatives: How State Legislatures’ Preemption Of Local Government’S Role In Climate Change Policy And Arkansas’ Act 308 Of 2021 Are Misplaced., Travis Golliher

University of Arkansas at Little Rock Law Review

No abstract provided.

The New Abortion Battleground, David S. Cohen, Greer Donley, Rachel Rebouché

Articles

This Article examines the paradigm shift that is occurring now that the Supreme Court has overturned Roe v. Wade. Returning abortion law to the states has spawned perplexing legal conflicts across state borders and between states and the federal government. This article emphasizes how these issues intersect with innovations in the delivery of abortion, which can now occur entirely online and transcend state boundaries. The interjurisdictional abortion wars are coming, and this Article is the first to provide the roadmap for the immediate aftermath of Roe’s reversal and what lies ahead.

Judges and scholars, and most recently the Supreme …

Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese

Faculty Publications

The Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation's resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress's goal to protect free competition.

The Sherman Act would thus override anticompetitive state laws under ordinary preemption standards. Nonetheless, the Supreme Court rejected such preemption in Parker v. Brown, creating the "state action doctrine." Parker and its progeny hold that state-imposed restraints are immune from Sherman Act preemption, even if they impose significant harm on out-of-state consumers. Parker's progeny …

Local And State Governments Are Taking The Stage When It Is Fda's Curtain Call - Are Local And State Governments' Safety Warnings Preempted By Federal Law?, Melissa M. Card

Journal of Food Law & Policy

Eliminated from fad diets, sworn off by celebrities, and frantically reformulated out of processed foods, added sugars have been deemed the new nutritional scoundrel. Recent studies from the American Heart Association, the World Health Organization, and the American Cancer Association demonstrate that the consumption of added sugar leads to increased risks of obesity, diabetes, heart disease, and gout. While all foods containing added sugar are deemed unhealthy, Sugary-Sweetened Beverages ("SSBs") are said to be especially toxic by the American health community, by virtue of these beverages' being excessively high in added sugar content, low in satiety, and incomplete in compensation …

Staying True To Nsmia: A Roadmap For Successful State Fiduciary Rules After Reg Bi, Maria E. Vaz Ferreira

St. John's Law Review

(Excerpt)

As Americans, there is hardly anything we value more than freedom. Being “free to choose” is the core guarantee through which we pursue our livelihood and succeed at happiness. The more choices, the better. But what if we we are supposed to choose blindly? In our postindustrial society, we often feel overwhelmed by the myriad choices we must make simply to get through our daily lives. To inform our choices, we rely on assumptions. More importantly, we rely on each other.

Reliance is central in the world of financial investments. Financial products are increasingly complex, and investors need specialized …

Takings Localism, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local …

Health Insurance Portability And Accountability Act Of 1996: Health & Public Welfare, Erin L. Hayes, Kathryn A. Vance

Georgia State University Law Review

The Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”) establish a standard for the use and protection of individuals’ health information and apply to certain covered entities or their business associates. Covered entities may only disclose an individual’s protected health information in limited situations. Covered entities or individuals that fail to comply with the Privacy Rule standards may be subject to civil or criminal penalties.

Preemption: Executive Order By The Governor To Ensure A Safe & Healthy Georgia, Marisa P. Ahlzadeh, Fanny Chac

Georgia State University Law Review

The doctrine of preemption expresses the idea that “a higher authority of law will displace a lower authority of law when the two authorities come into conflict.” Preemption exists on both the federal and state level. According to the Georgia Constitution, local laws are permissible if they do not conflict with the state law on the subject. During a Public Health State of Emergency, the Governor of Georgia maintains certain expanded powers to take necessary action for the health and safety of the public. On April 2, 2020, Governor Brian Kemp (R) used these expanded powers to enact an Executive …

Torts: Covid-19 Pandemic Business Safety Act & Executive Order By The Governor Designating Auxiliary Management Workers And Emergency Management Activities, Angelena Velaj, Troy Viger

Georgia State University Law Review

The Executive Order expanded immunity from liability for volunteer health care workers as emergency management workers performing emergency management activities. The Order was not limited to only COVID-19-related activities. When the legislature reconvened, legislators passed the Georgia COVID-19 Pandemic Business Safety Act, which provided liability limitation to businesses against tort claims arising from the pandemic.

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 …

Check State: Avoiding Preemption By Using Incentives, Michael Allan Wolf

UF Law Faculty Publications

No abstract provided.

Principles Of Home Rule For The Twenty-First Century, Richard Briffault, Nestor M. Davidson, Paul A. Diller, Sarah Fox, Laurie Reynolds, Erin A. Scharff, Richard Schragger, Rick Su

Faculty Scholarship

The National League of Cities’ “Principles of Home Rule for the Twenty-First Century” updates the American Municipal Association’s 1953 “Model Constitutional Provisions for Municipal Home Rule.” The AMA approach was widely adopted, but those provisions are now over 65 years old and intervening social, demographic, economic, and political changes necessitates a new approach to the legal structure of state-local relations. The NLC’s approach is organized around four basic principles, which are cashed-out in a model constitutional home rule provision, with commentary. The first principle states that a state’s law of home rule should provide local governments the full capacity to …

Virginia Uranium, Inc. V. Warren, Nyles G. Greer

Public Land & Resources Law Review

The Supreme Court of the United States recently ruled that the Atomic Energy Act did not preempt a Virginia law prohibiting uranium mining in the Commonwealth. The Court held that although the Act delegated substantial power over the nuclear life cycle to the Nuclear Regulatory Commission, it offered no indication that Congress sought to strip states of their traditional power to regulate mining on private lands within their borders.

Protecting Local Authority In State Constitutions And Challenging Intrastate Preemption, Emily S.P. Baxter

University of Michigan Journal of Law Reform

In recent years, state legislatures have increasingly passed laws that prohibit or preempt local action on a variety of issues, including fracking, LGBTQIA nondiscrimination, and workplace protections, among others. Often, these preemption laws are a direct response to action at the local level. States pass preemption laws either directly before or directly after a locality passes an ordinance on the same subject. Scholars have seen these preemptive moves as the outcome of the urban disadvantage in state and national government due to partisan gerrymandering.

Preemption may be a feature of our governing system, but it has also become a problematic …

States Empowering Plaintiff Cities, Eli Savit

University of Michigan Journal of Law Reform

Across the country, cities are becoming major players in plaintiff’s-side litigation. With increasing frequency, cities, counties, and other municipalities are filing lawsuits to vindicate the public interest. Cities’ aggressive use of lawsuits, however, has been met with some skepticism from both scholars and states. At times, states have taken action—both legislative and via litigation—to preempt city-initiated suits.

This Article contends that states should welcome city-initiated public-interest lawsuits. Such litigation, this Article demonstrates, vindicates the principles of local control that cities exist to facilitate. What is more, a motivated plaintiff city can accomplish public-policy goals that are important not just to …

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 …

Armageddon: The Inevitable Death Of Nuclear Power And Whether New York State Has The Legal Authority To Keep It On Life Support, David Solimeno

Pace Environmental Law Review

This Note seeks to make the argument for New York’s ZEC program as a legitimate exercise of state power. Part I provides context—the history of nuclear power, the rise and fall in the incidence of nuclear power projects, and why such investments are failing. Part II then provides an overview of the CES and the ZEC program contained therein. In Part III, the legal challenges filed in response to Tier 3 are discussed, as well as the Illinois case which parallels the conventional generator challenge in New York. Part III will also discuss relevant legal precedent the cases concern, namely …

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 …

Atlantic Richfield Company V. Montana Second Judicial District Court, Molly Kelly

Public Land & Resources Law Review

Landowners in Opportunity, Montana sought restoration damages from ARCO, Anaconda Copper Mining Company’s successor, to their property from over a century of processing ore at the Anaconda Smelter. ARCO argued that CERCLA preempted and barred any claim for restoration damages. The Montana Supreme Court held: landowners could bring their state common law claims seeking restoration damages; the state district court had subject matter jurisdiction; and landowners’ proposed restoration fund did not challenge EPA’s selected remedy under CERCLA.

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

Northwestern Journal of Law & Social Policy

No abstract provided.

A Tale Of Two Sovereigns: Federal And State Use And Regulation Of Unmanned Aircraft Systems, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Despite claims to the contrary, the federal government is severely limited in what it can do to regulate unmanned aircraft systems (UASs). States, on the other hand, as governments of general jurisdiction, have expansive powers that they are already using to grapple with the questions posed by UAS related to privacy, crime, and public safety. This chapter outlines the evolution of federal measures, noting their limitations, before delving into three categories of state law, related to law enforcement, criminal measures, and regulatory regimes. The chapter then turns to the history of state sovereignty, looking at states’ jurisdiction over persons and …

New Hampshire Motor Transport Association V. Rowe: Federal Preemption Of Maine's Attempt To Regulate Internet Sales Of Tobacco To Minors, Nathaniel D. Bryans

Maine Law Review

In New Hampshire Motor Transport Ass'n v. Rowe, trade associations sought a declaratory judgment that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) preempts a Maine law enacted to facilitate collection of state taxes and restrict the delivery of tobacco products to minors (the Tobacco Delivery Law). The district court granted the plaintiffs' second motion for summary judgment in part, finding that a single provision of little independent consequence escaped preemption, and enjoined enforcement of the preempted provisions. The state appealed to the United States Court of Appeals for the First Circuit, which held that most of Maine's Tobacco …

Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith

All Faculty Scholarship

This book review argues for reorienting how we think about federalism in relation to foreign affairs. In considering state and local engagement in foreign affairs, legal scholars often focus on the opportunities and limits provided by constitutional law. Foreign Affairs Federalism: The Myth of National Exclusivity by Michael Glennon and Robert Sloane does precisely this in a thoughtful and well-crafted way. But while the backdrop constitutional principles studied by Glennon and Sloane are important, so too are other types of law that receive far less attention. International law, administrative law, particular statutory schemes, and state law can all affect how …

Droit De Suite, Copyright’S First Sale Doctrine And Preemption Of State Law, David E. Shipley

Scholarly Works

The primary focus of this article is whether California’s forty-year old droit de suite statute; the California Resale Royalty Act (CRRA), is subject to federal preemption under the Copyright Act. This issue is now being litigated in the Ninth Circuit, and this article concludes that the CRRA is preempted under section 301(a) of the Copyright Act and under the Supremacy Clause because it at odds with copyright’s well-established first sale doctrine.

The basic idea of droit de suite is that each time an artist’s work is resold by a dealer or auction house, the artist is entitled to a royalty, …

When States’ Legislation And Constitutions Collide With Angry Locals: Shale Oil And Gas Development And Its Many Masters, Heidi Gorovitz Robertson

William & Mary Environmental Law and Policy Review

This Article explores the nationally common problem of tension and conflict among state oil and gas statutes, constitutional home rule, and local control by considering intersections and tensions among the Ohio Constitution’s home rule authority, the Ohio oil and gas law’s preemption provision, and the many regulatory efforts of Ohio’s local governments. It explores the scope of the Ohio Constitution’s home rule authority, in part, by evaluating courts’ statements on the validity of several types of local ordinances, as they confront home rule and a legislative attempt at preemption. Types of local ordinances evaluated include those that prohibit or ban …

A Cause Of Action, Anyone?: Federal Equity And The Preemption Of State Lalw, Henry Paul Monaghan

Notre Dame Law Review

In this very brief Essay, I focus on aspects of a topic on which both Danny and I have written and on which our reasoning differed: federal court authority, “sitting in equity,” to enjoin enforcement of state law on federal preemption grounds. In a coercive action brought by the state to enforce the state law, the federal act could of course be set up as a defense. Suppose, however, that alleging “arising under” subject-matter jurisdiction, the plaintiff sues the appropriate state officials to restrain enforcement of the state statute. Many such challenges are readily entertained on the merits, often because …

City Of Longmont Colorado V. Colorado Oil & Gas Association, Arie R. Mielkus

Public Land & Resources Law Review

In Colorado, the oil and gas industry's use of hydraulic fracturing, and municipalities’ attempts to restrict where the practice can be done, are at odds. Those in favor of hydraulic fracturing laud the economic benefits and natural gas’s ability to burn cleaner than coal, while those in opposition warn of potential adverse environmental impacts including the strain on water resources in the arid west. The City of Longmont was sued following its enactment of an amendment outlawing hydraulic fracturing within city limits. The City’s amendment was found to be preempted by state law, and thus could not remain in force. …

Erie And Preemption: Killing One Bird With Two Stones, Jeffrey Rensberger

Indiana Law Journal

The Supreme Court has developed a standard account of the Erie doctrine. The Court has directed different analyses of Erie cases depending upon whether the federal law in question is in the form of a federal rule (or statute) or is instead a judge-made law. But the cases applying the doctrine are difficult to explain using the standard account. Although the Court and commentators have noted that Erie is a type of preemption, they provide little, if any, rigorous analysis of Erie in light of preemption doctrines. This Article attempts to fill that void, offering an extended analysis of Erie …