Law Commons^™

Overcoming Jurisdictional Obstacles To Feed-In Tariffs In The United States, John Perkins

Golden Gate University Law Review

This Comment provides a brief survey of the current rules that delineate federal and state jurisdiction over electrical energy in the United States. Part II also discusses three important exceptions to these jurisdictional rules. This Comment then examines the FIT in the scheme of federal versus state jurisdiction. Part III discusses the value of the FIT and then analyzes the development of current jurisdictional rules that make state-law FITs untenable in the current legal landscape. Finally, Part IV proposes a solution in the form of a jurisdictional carve-out modeled on the Rural Electrification Act, an initiative that the federal government …

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

Faculty Publications

No abstract provided.

Boggs V. Boggs: State Community Property And Succession Rights Wallow In Erisa's Mire, Tony Vecino

Golden Gate University Law Review

This Note will summarize the history of Boggs and discuss the issues that led to a circuit split between the Fifth and Ninth Circuits regarding community property rights and ERISA protected pension plan benefits in the testamentary context. It will also track ERISA's legislative history to determine Congressional intent. In particular, this Note will examine inconsistencies among past judicial constructions based on the application of ERISA's preemption and spendthrift provisions to regulate private pension plans. Further, this Note will scrutinize the Court's holding in Boggs giving deference to the facts in the record to clarify the problems inherent in the …

Constitutional Law - Board Of Natural Resources V. Brown: New York Grows Roots In Washington, Robert E. Arnold Iii

Golden Gate University Law Review

In Board of Natural Resources v. Brown, the Ninth Circuit Court of Appeals held that provisions in the Forest Resources Conservation and Shortage Relief Act violated the Tenth Amendment by compelling western states to issue regulations according to Congress' instructions. In so doing, the court recognized the ongoing vitality of the Tenth Amendment as a limitation on the power of Congress to use states as instruments of federal regulation.

Fisher V. City Of Berkeley: Applying Due Process And Preemption To Rent Control Ordinances, Scott T. Dunning

Golden Gate University Law Review

In Fisher v. City of Berkeley, the California Supreme Court addressed the validity of Berkeley's latest rent control ordinance. With the exception of a retaliatory eviction provision, the court upheld the ordinance against all challenges. These challenges included alleged due process violations, and claims that certain provisions in the ordinance were preempted by state law. The Fisher court discussed five relevant issues: 1) the facial validity of the ordinance's rate of return standard; 2) the facial validity of the ordinance's rate adjustment procedures; 3) whether the ordinance constitutes an unreasonable restraint on the alienation of property; 4) the validity of …

Nuclear Plant Construction After Pacific Gas: A Pyrric Victory For The States?, Derek G. Howard

Golden Gate University Law Review

This Note will analyze the Pacific Gas decision and then consider the option left to a state once the state has concluded that it is not satisfied with the federal resolution of the waste crisis facing the country in the 1990's.

Environmental Law, Linda Ackley

Golden Gate University Law Review

No abstract provided.

"What Do I Do About This Word, 'Unavoidable'?": Resolving Textual Ambiguity In The National Childhood Vaccine Injury Act, Jason Lafond

Michigan Law Review First Impressions

The quote in the title of this Essay comes from Justice Breyer, expressing his frustration with the language of section 22(b)(1) of the National Childhood Vaccine Injury Act. Justice Breyer made this comment during the October 12, 2010, oral argument in Bruesewitz v. Wyeth, Inc., a case about the availability of state tort claims based on vaccine design defects. The question before the Court was whether that section expressly preempts such claims against vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions …

Federal Employer Sanctions As Immigration Federalism, Darcy M. Pottle

Michigan Journal of Race and Law

For low-skilled workers in much of the world, U.S. admission policies make illegal immigration the most viable means of entering the country. Low average schooling, which disqualifies many potential immigrants from employment-based visas, and long queues affecting family preference immigration from high-traffic countries, make the admission criteria outlined in the U.S. Immigration and Nationality Act (INA) prohibitive for most would-be immigrants to the United States. Perhaps due to this failure of immediate legal avenues, many immigrants enter the country illegally. Though many eventually gain legal status, in the meantime they live and work in the United States without documentation. "Illegal …

The Partisan Dimensions Of Federal Preemption In The United States Courts Of Appeals, Bradley Joondeph

Bradley W. Joondeph

This paper explores some of these empirical uncertainties surrounding the political dimensions of preemption in the federal courts. More concretely, it presents a statistical study of every preemption decision rendered by the United States Courts of Appeals from January 1, 2005, to December 31, 2009, a total of 560 decisions and just over 1,700 judicial votes. And these data tell a story consisting of two distinct parts. The first part is that preemption disputes seem to produce a large measure of judicial consensus. In the full universe of cases, there is only a slight difference between Republican and Democratic appointees: …

Presidents, Preemption, And The States, Michele E. Gilman

All Faculty Scholarship

Early in his administration, President Obama issued a memorandum about preemption that ordered federal agencies to fully consider state interests before preempting state laws. The Obama memorandum was a rebuke to the Bush Administration, which had regularly inserted preemption provisions into federal regulations in areas affecting health, consumer safety, and the environment. As a result of preemption, state laws could not be more protective than federal standards, and corporations were spared state tort lawsuits and state regulatory regimes. Preemption not only tends to pit corporate interests against the public welfare, but it can also undermine federalism. There is currently a …

Crude Defenses? Liability Limits For Offshore Drilling Accidents And Oil Spills, Richard Faulk

Richard Faulk

All those who participate in realizing the benefits of exploration – including those who use the resulting products and depend on their safe handling to avoid harm – are subject to their dangers. When the risks are enormous, and when society’s demands are extraordinary, the situation is ripe for political compromise. The products of that compromise may not be popular at this time of crisis, but that does not lessen their importance as anchors of reason during difficult times. The Limitation Act and the OPA, as well as the procedures under Supplemental Rule F, form a foundation that enables the …

Stretching The Boom? Limiting Liability For Offshore Drilling Disasters, Richard Faulk

Richard Faulk

Offshore drilling is a tremendously complicated and potentially lucrative process. Unfortunately, it is also dangerous. Harvesters of fossil fuels face massive risks, not only to their lives and properties, but also to our environment and the livelihoods of all those who depend upon it. On balance, our “modern” sense of justice might insist that those who realize wealth should bear the risks that their exploration and production poses to others. But when a product, like petroleum, is inextricably woven into our national fabric, legislators sometimes reach surprising compromises. So, it seems, the owner of the Deepwater Horizon will argue in …

The “New” Presumption Against Preemption, Mary J. Davis

Law Faculty Scholarly Articles

Is there or isn't there a “presumption against preemption”? The Supreme Court continues to mention it, but then does, or does not, apply it in a way that helps us understand what it is. This Article explores the Court's preemption opinions in the last several decades, particularly its most recent pronouncements, and concludes that, indeed, there is a presumption against preemption. It is a "new" presumption in the sense that it is born of the Court's active preemption docket in the last two decades, which has more narrowly defined both express and implied preemption analysis. The "new" presumption is stronger …

Post-Sale Restrictions On Patented Seeds: Which Law Governs?, Rita S. Heimes

Rita S Heimes

Since the agrichemical industry entered the business of creating genetically engineered seeds, farming in America has never been the same. Patents on these GE seeds have been reinforced with so-called “license” agreements that accompany their sale to farmers. Failure to abide the terms of these agreements can land a farmer in federal district court defending a patent infringement lawsuit. Several states have passed legislation relating to the terms of these contracts (known in the industry as “Technology Use Agreements” or colloquially as “bag-tag” agreements). This article explores whether state laws relating to these bag-tag agreements are enforceable, or whether the …

The Vote From Beyond The Grave, Krysta R. Edwards

William & Mary Law Review

No abstract provided.

An Ad Hoc Inquiry Into The Feasibilities And Impracticalities Associated With Class Certification Of Blood Glucose Monitor Users, Margarita Rubin

Margarita Rubin

ABSTRACT Recent developments in pre-emption law have outlined the requirements for bringing an action against a manufacturer of an FDA approved medical device. Specifically, devices that undergo the 510(k) approval process remain a viable target for state tort claims. In February, 2008 the Supreme Court handed down a crucial decision in Riegel v. Medtronic, Inc., involving medical devices regulated by the FDA. In Riegel, the Court reaffirmed the distinction between the exhaustive "federal requirements" of the PMA process and the looser scrutiny of 510(k) notification. This means that 510(k) devices—which vastly outnumber PMA devices—remain fully exposed to mass-tort liability. Medical …

An Ad Hoc Inquiry Into The Feasibilities And Impracticalities Associated With Class Certification Of Blood Glucose Monitor Users, Margarita Rubin

Margarita Rubin

ABSTRACT Recent developments in pre-emption law have outlined the requirements for bringing an action against a manufacturer of an FDA approved medical device. Specifically, devices that undergo the 510(k) approval process remain a viable target for state tort claims. In February, 2008 the Supreme Court handed down a crucial decision in Riegel v. Medtronic, Inc., involving medical devices regulated by the FDA. In Riegel, the Court reaffirmed the distinction between the exhaustive "federal requirements" of the PMA process and the looser scrutiny of 510(k) notification. This means that 510(k) devices—which vastly outnumber PMA devices—remain fully exposed to mass-tort liability. Medical …

Preemption And The Public Health: How Wyeth V. Levine Stands To Change The Ways In Which We Implement Health Policy, Shane Levesque

Saint Louis University Journal of Health Law & Policy

No abstract provided.

The Legal Arizona Workers Act And Preemption Doctrine, Sandra J. Durkin

Michigan Journal of Race and Law

in recent years, a spate of states passed laws regulating the employment of undocumented immigrants. This Note argues that laws that impose civil sanctions on employers that hire undocumented immigrants are preempted by both federal immigration law and federal labor law. The Note focuses specifically on the Legal Arizona Workers Act because it went into effect in 2008 and has amassed more than two years' worth of data on its enforcement, and because it is touted as the harshest state anti-immigration measure to date. This Note examines the law's impacts and argues that practitioners nationwide should challenge the Legal Arizona …

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 …

Plural Vision: International Law Seen Through The Varied Lenses Of Domestic Implementation, D. A. Jeremy Telman

Law Faculty Publications

This Essay introduces a collection of essays that have evolved from papers presented at a conference on “International Law in the Domestic Context.” The conference was a response to the questions raised by the U.S. Supreme Court’s decision in Medellín v. Texas and also a product of our collective curiosity about how other states address tensions between international obligations and overlapping regimes of national law.

Our constitutional tradition speaks with many voices on the subject of the relationship between domestic and international law. In order to gain a broader perspective on that relationship, we invited experts on foreign law to …

Access To Courts And Preemption Of State Remedies In Collective Action Perspective, Robert L. Glicksman, Richard E. Levy

Robert L. Glicksman

Preemption of common law remedies for individual injuries such as harm to health raises fundamental questions about the proper allocation of authority between the federal and state governments and about the role of courts in interpreting statutes and providing remedies for those who suffer injuries. Developing a workable framework for analyzing what we call “remedial preemption” issues can help to ensure an appropriate accommodation of the federal and state interests at stake and promote consistent application of preemption doctrine to state judicial remedies.

This article applies a “collective action” framework for preemption analysis to the issue of remedial preemption. Our …

Federal Preemption: A Roadmap For The Application Of Tribal Law In State Courts, Jackie A. Gardina

Jackie A Gardina

This Article contends state courts are not necessarily free to apply state law when the state court is exercising concurrent adjudicative jurisdiction with tribal courts. Indian law principles of pre-emption direct state courts to apply tribal law in certain cases. A guiding principle emerges; if a tribe has legislative jurisdiction over the dispute then tribal law ordinarily must be applied. In these instances, a state’s laws, including its choice of law rules, are preempted by federal common law because their application interferes with the federal government’s and the tribe’s interest in promoting tribal self-government, including the tribe’s ability to create …

Plural Vision: International Law Seen Through The Varied Lenses Of Domestic Implementation, D. A. Jeremy Telman

D. A. Jeremy Telman

This essay introduces a collection of essays that have evolved from papers presented at a conference on “International Law in the Domestic Context.” The conference was a response to the questions raised by the U.S. Supreme Court’s decision in Medellín v. Texas and also a product of our collective curiosity about how other states address tensions between international obligations and overlapping regimes of national law.

Our constitutional tradition speaks with many voices on the subject of the relationship between domestic and international law. In order to gain a broader perspective on that relationship, we invited experts on foreign law to …

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

Journal of Health Care Law and Policy

No abstract provided.

Erisa Preemption Of State "Play Or Pay" Mandates: How Ppaca Clouds An Already Confusing Picture, Mary Ann Chirba-Martin

Journal of Health Care Law and Policy

No abstract provided.

The Relationship Between Erisa, State And Local Health Care Experimentation, And The Passage Of National Health Care Reform, Christopher J. Frankenfield

Journal of Health Care Law and Policy

No abstract provided.

The Montreal Convention And The Preemption Of Air Passenger Harm Claims, Marc Mcdonald

Articles

The article examines the evolution and present state of the law governing the preemption of passenger claims for compensation for harm arising from international air travel under the Montreal and Warsaw Conventions

Constitutional Contours For The Design And Implementation Of Multistate Renewable Energy Programs And Projects, Robin Kundis Craig

University of Colorado Law Review

States are increasingly considering multistate efforts to promote the production, sale, and use of renewable energy. For example, in August 2009, policymakers and stakeholders gathered to consider joint renewable energy (specifically, wind energy) transmission projects among Colorado, New Mexico, Utah, and Wyoming. This Article explores a number of constitutional issues that multistate efforts to encourage, market, transmit, or distribute renewable energy could raise. It reflects the reality that for energy, as for many other issues, multistate creativity in establishing new governance regimes or in implementing interstate projects often creates constitutional ambiguities. Many of these ambiguities center on the constitutional status-private …