Law Commons^™

Abortion Localism And Preemption In A Post-Roe Era, Kaitlin A. Caruso

Faculty Publications

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court eliminated federal constitutional protections for abortion in the United States, overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. That ruling returned much regulation of abortion to state control. But it will also accelerate a longstanding trend: municipal abortion regulation. And in the current world of local government law, increased local activity brings with it the question of state preemption. This article is the first to bring together the history and trends in local abortion policy with intrastate preemption doctrine to fully canvass the post-Roe local abortion …

Displacement And Preemption Of Climate Nuisance Claims, Jonathan H. Adler

Faculty Publications

New York City and other municipalities have filed state-law-based nuisance suits against fossil fuel companies seeking compensatory damages for the consequences of climate change. Previous nuisance claims, filed under federal common law, were held to be displaced by federal environmental statutes. Defendants have argued that state-law-based claims should likewise be preempted. Yet while the enactment of federal regulatory statutes displaces federal common law actions for interstate pollution, such enactments do not necessarily preempt state common law actions, even where pollution crosses state boundaries, as it is more difficult to preempt state common law than it is to displace federal common …

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 …

Food Federalism: States, Local Governments, And The Fight For Food Sovereignty, Sarah B. Schindler

Faculty Publications

Recently, a number of states have sought to withdraw or restrain local power. In this Article, which is part of the “Re-Thinking State Relevance” symposium hosted by the Ohio State Law Journal, I write about a state taking the opposite approach, and attempting to affirmatively endow its local governments with additional powers. The state is Maine, and the context is control over local food production and sales. This Article begins by addressing the emergence of the sustainable local foods movement broadly, and reasons for the growth of this movement. It then focuses more pointedly on the food sovereignty movement, considering …

The Twin Aims Of Erie, Michael S. Green

Faculty Publications

We all remember the twin aims of the Erie rule from first-year civil procedure. A federal court sitting in diversity must use forum state law if it is necessary to avoid 'forum shopping" and the "inequitable administration of the laws." This Article offers a reading of the twin aims and a systematic analysis of their proper role in federal and state court. I argue that the twin aims apply in diversity cases not because they protect state interests, but because they serve the federal purposes standing behind the diversity statute. So understood, they are about separation of powers, not federalism. …

Immigration Federalism: A Reappraisal, Pratheepan Gulasekaram, Karthick Ramakrishnan

Faculty Publications

This Article identifies how the current spate of state and local regulation is changing the way elected officials, scholars, courts, and the public think about the constitutional dimensions of immigration law and governmental responsibility for immigration enforcement. Reinvigorating the theoretical possibilities left open by the Supreme Court in its 1875 Chy Lung v. Freeman decision, state and local offi- cials characterize their laws as unavoidable responses to the policy problems they face when they are squeezed between the challenges of unauthorized migration and the federal government’s failure to fix a broken system. In the October 2012 term, in Arizona v. …

Erisa Preemption Doctrine As Health Policy, Joshua P. Booth, Larry I. Palmer

Faculty Publications

No abstract provided.

Thoughts On Preemption In The Wake Of The Levine Decision, Erika Lietzan, Sarah E. Pitlyk

Faculty Publications

This article discusses the prospects for preemption doctrine in the wake of the Supreme Court’s decision in Wyeth v. Levine. Part I describes the Levine decision. Part II examines the majority’s holding as it relates to impossibility preemption and considers the future of the doctrine in failure-to-warn suits after Levine. We argue that the announced standard for impossibility preemption — the clear evidence standard — should be interpreted reasonably and not in a manner that effectively eviscerates the doctrine. We also describe other instances of impossibility in the food and drug regulatory context that were not presented to the Court. …

Equal Accountability Through Tort Law, Jason M. Solomon

Faculty Publications

No abstract provided.

"Manifest" Destiny?: How Some Courts Have Fallaciously Come To Require A Greater Showing Of Congressional Intent For Jurisdictional Exhaustion Than They Require For Preemption, Colin Miller

Faculty Publications

No abstract provided.

Fraud And Federalism: Preempting Private State Securities Fraud Causes Of Action, Michael A. Perino

Faculty Publications

The passage of the Private Securities Litigation Reform Act of 1995 has engendered a significant forum shift in class action securities fraud litigation, from federal to state court. This unintended by-product of the Act has reignited debate over our dual federal-state system of securities regulation and in turn has inspired a discussion as to whether Congress should now preempt state securities fraud causes of action. This article argues that preemption is an appropriate, but not the only, solution to these concerns. To support this argument, this article first traces the history of dual state-federal securities regulation within the context of …

Order Flow Cases: Jurisdiction, Preemption And Securities Laws, Richard L. Stone, Francis J. Facciolo

Faculty Publications

(Excerpt)

Primary jurisdiction and preemption issues arise in securities class action litigation when alleged violations of state law arise from conduct that is either explicitly or implicitly regulated by the federal securities laws.

These are two distinct theories: one is a matter of administrative law and judicial economy (primary jurisdiction); the other is a matter of constitutional law involving the Supremacy Clause (preemption). To date, there has not been extensive case law involving preemption and the federal securities laws (other than in the blue sky and tender offer areas) and there has been almost no case law on primary jurisdiction …

The Non-Impact Of The United States Supreme Court Regulatory Takings Cases On The State Courts: Does The Supreme Court Really Matter?, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Torts-- Federal Preemption Of State Common Law-- Federal Cigarette Labeling & Advertising Act, Elizabeth Price Foley, Elizabeth C. Price

Faculty Publications

This case note examining Supreme Court's landmark preemption decision in Cipollone v. Liggett Group.

The Employer's Fetal Injury Quandary After Johnson Controls, Susan Grover

Faculty Publications

No abstract provided.

Cooperative Failure: An Analysis Of Intergovernmental Relationships And The Problem Of Air Quality Non-Attainment, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Federalism, Congress, The States And The Tenth Amendment: Adrift In The Cellophane Sea, William W. Van Alstyne

Faculty Publications

Like Gaul, this essay is divided into three parts. The first two parts are adapted from a public address delivered at the Association of the Bar of the City of New York, as part of its Bicentennial series, in 1987. The third part was added later, originally as an Addendum Note. The general subject was introduced by the moderator, Mr. Robert MacCrate, President of the Amerian Bar Association, who put the following question: "Where does the federalism of the Constitution stand today?" Professor Martha Field of the Harvard Law School presented a paper in first response. This paper then followed, …

The Second Death Of Federalism, William W. Van Alstyne

Faculty Publications

In 1976, in National League of Cities v. Usery, the Supreme Court distinguished acts of Congress regulating commercial relations from acts of Congress commanding the terms of state services. Last Term, in Garcia v. San Antonio Metropolitan Transit Authority, the Court abandoned the distinction and held that it was principally for Congress to determine federalism questions. In this Comment, Professor Van Alstyne criticizes the Court on both counts.