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Full-Text Articles in Law
Chevron And Preemption, Nina A. Mendelson
Chevron And Preemption, Nina A. Mendelson
Articles
This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …
On Preemption, Congressional Intent, And Conflict Of Laws, Mary J. Davis
On Preemption, Congressional Intent, And Conflict Of Laws, Mary J. Davis
Law Faculty Scholarly Articles
Conflicts scholars and jurists for centuries have sought an answer to the question of "what law controls?" by balancing a number of considerations. Chief among those considerations are the legitimate political and policy concerns of conflicting sovereigns. This article analyzes the Supreme Court's recent preemption decisions with an understanding of these theories and their underlying considerations. That analysis reveals that the Court's recent preemption decisions incorporate two modem conflict of laws theories: Governmental Interest Analysis and its corollary, Comparative Impairment. Each of these theories builds on the notion that a choice of law analysis should be motivated by selecting the …