Law Commons^™

Null Preemption, Jonathan R. Nash

Faculty Articles

This Article proceeds as follows. In Part I, I introduce the concept of null preemption. I discuss in greater detail the case of regulation of motor vehicle tailpipe greenhouse-gas emissions as a case study of null preemption. In Part II, I explore the contours of null preemption, and then describe, and distinguish among, several paradigmatic settings in which null preemption may arise.

In Part III, I consider the normative case for null preemption. I conclude that the case is narrow. I also consider concerns of institutional choice and argue that even those who generally defend agency preemption of state law …

The Irrepressible Influence Of Byrd, Richard D. Freer, Thomas Arthur

Faculty Articles

We set forth four interrelated theses in this article. First, Byrd is the only Supreme Court case since Erie itself to discuss all three of the core interests balanced, expressly or not, in every vertical choice of law case. Second, because Hanna's "twin aims" test ignores two of these three core interests, it cannot adequately serve as the standard for cases under the Rules of Decision Act ("RDA"). This fact is evidenced by the Court's eschewing the twin aims test in cases, like Gasperini, where state and federal interests must be accommodated. Third, as all three opinions in …