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Full-Text Articles in Law
Making Preemption Less Palatable: State Poison Pill Legislation, Robert A. Mikos
Making Preemption Less Palatable: State Poison Pill Legislation, Robert A. Mikos
Vanderbilt Law School Faculty Publications
Congressional preemption constitutes perhaps the single greatest threat to state power and to the values served thereby. Given the structural incentives now in place, there is little to deter Congress from preempting state law, even when the state interests Congress displaces far exceed its own. The threat of preemption has raised alarms across the political spectrum, but no one has yet devised a satisfactory way to balance state and federal interests in preemption disputes. This Article devises a novel solution: state poison pill legislation. Borrowing a page from corporate law, poison pill legislation would enable the states to make preemption …
Constitutional Isolationism And The Limits Of State Separation Of Powers As A Barrier To Interstate Compacts, Jim Rossi
Vanderbilt Law School Faculty Publications
In this Essay, I address the question of which branch of state government ought to have the authority to negotiate interstate compacts - a question of state separation of powers. Recent case law interpreting state constitutions in the context of Indian gambling compacts provides a particularly fertile ground for exploring this question, as it illustrates how courts are struggling to find a way to allow state executive officials greater autonomy to negotiate interstate compacts. Part I illustrates how traditional notions of separation of powers under state constitutions can be understood to pose a barrier to executive branch negotiation of interstate …
The Shifting Preemption Paradigm: Conceptual And Interpretive Issues, Karen A. Jordan
The Shifting Preemption Paradigm: Conceptual And Interpretive Issues, Karen A. Jordan
Vanderbilt Law Review
Recent decisions have signaled a subtle shift away from the Supreme Court's categorical approach to the issue of federal preemption of state law, and toward a preemption continuum in which the implied preemption theories may inform an express preemption analysis. Yet, the Court as a whole has avoided addressing the issues arising from the integration of the doctrines. In this Article, Professor Jordan explores some of these difficult issues. The conceptual issues concern when and how the implied theories should be used in an analysis involving an express preemption clause. She analyzes the Court's recent use of the implied theories …