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Articles 1 - 30 of 50
Full-Text Articles in Law
Preempting Private Prisons, Christopher Matthew Burgess
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 …
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.
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
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 …
Preemption: Executive Order By The Governor To Ensure A Safe & Healthy Georgia, Marisa P. Ahlzadeh, Fanny Chac
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
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.
Health Insurance Portability And Accountability Act Of 1996: Health & Public Welfare, Erin L. Hayes, Kathryn A. Vance
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.
State Vehicle Electrification Mandates And Federal Preemption, Matthew N. Metz, Janelle London
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 …
Virginia Uranium, Inc. V. Warren, Nyles G. Greer
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
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
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
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
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
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
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
Soda Taxes As A Legal And Social Movement, David A. Dana, Janice Nadler
Northwestern Journal of Law & Social Policy
No abstract provided.
New Hampshire Motor Transport Association V. Rowe: Federal Preemption Of Maine's Attempt To Regulate Internet Sales Of Tobacco To Minors, Nathaniel D. Bryans
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 …
When States’ Legislation And Constitutions Collide With Angry Locals: Shale Oil And Gas Development And Its Many Masters, Heidi Gorovitz Robertson
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
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
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
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 …
Too Many Cooks In The Climate Change Kitchen: The Case For An Administrative Remedy For Damages Caused By Increased Greenhouse Gas Concentrations, Benjamin Reese
Michigan Journal of Environmental & Administrative Law
Recent federal and state court decisions have made clear that federal common law claims against emitters of greenhouse gases are not sustainable; however, those same courts seem to have given state common law tort claims the green light, at least if the claims are brought in the state where the polluters are located. This Note contends that such suits are not an adequate remedy for those injured by climate change because they will face nearly insurmountable barriers in state court, and because there are major policy-level drawbacks to relying on state tort law rather than a federal solution. This Note …
Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt
Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt
Michigan Law Review First Impressions
The practice of hydraulic fracturing-or fracking-has become a major focus of policymakers in recent years. Federal, state, and local regulations on fracking create a confusing web for industry to navigate, and governmental entities often battle with each other for authority to regulate the practice. The fast and widespread growth of fracking in the United States has therefore exacerbated confusion over who will regulate this booming industry, and courts have so far failed to use sensible principles to resolve inconsistencies among federal, state, and local regulations. When fracking laws conflict, courts traditionally use preemption doctrine-general rules that help judges choose whether …
Administrative Law, John Paul Jones, John R. Mohrmann
Administrative Law, John Paul Jones, John R. Mohrmann
University of Richmond Law Review
This article is a report of certain developments during the last two years relating to the Virginia Administrative Process Act ("the VAPA"), which governs rulemaking and adjudication of cases by state agencies as well as judicial review of both.
Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein
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
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.
Nlra Preemption Of State Common Law Wrongful Discharge Claims: The Bhopal Brigade Goes Home , Joseph R. Weeks
Nlra Preemption Of State Common Law Wrongful Discharge Claims: The Bhopal Brigade Goes Home , Joseph R. Weeks
Pepperdine Law Review
No abstract provided.
Preemption Under The Controlled Substances Act, Robert A. Mikos
Preemption Under The Controlled Substances Act, Robert A. Mikos
Journal of Health Care Law and Policy
No abstract provided.
Health Care Providers Meet Erisa: Are Provider Claims For Misrepresentation Of Coverage Preempted, Jeffrey A. Brauch
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
Federalism And Preemption In October Term 1999, Jonathan D. Varat
Pepperdine Law Review
No abstract provided.