Law Commons^™

Dodd-Frank Act And National Bank Preemption: Much Ado About Nothing, Raymond Natter, Katie Wechsler

Raymond Natter

Federal preemption of state law has been a contentious issue since 1819, when the Supreme Court upheld the right of the Federal Government to charter a national bank and preempted a state attempt to tax that institution. In 1863, the National Bank Act (NBA) established the national bank system, with the goal of having federally chartered institutions eventually supersede state banks. Efforts by the states to prevent this result and to enforce state laws on national banks led to a continuing debate over the preemptive effect of the National Bank Act over the past 150 years.

More recently, those opposed …

The Transformation Of Immigration Federalism, Jennifer M. Chacón

William & Mary Bill of Rights Journal

No abstract provided.

Health Care Providers Meet Erisa: Are Provider Claims For Misrepresentation Of Coverage Preempted, Jeffrey A. Brauch

Pepperdine Law Review

No abstract provided.

An Economic View Of Innovation And Property Right Protection In The Expanded Regulatory State, J. Miles Hanisee

Pepperdine Law Review

No abstract provided.

Medtronic, Inc. V. Lohr: Is Federal Pre-Emption A Heartbeat Away From Death Under The Medical Device Amendments?, Mark E. Gelsinger

Pepperdine Law Review

No abstract provided.

Preemption: The United States Arbitration Act, The Manifest Disregard Of The Law Test For Vacating An Arbitration Award, And State Courts, Paul Turner

Pepperdine Law Review

No abstract provided.

Federalism And Preemption In October Term 1999, Jonathan D. Varat

Pepperdine Law Review

No abstract provided.

Rediscovering A Principled Commerce Power , Douglas W. Kmiec

Pepperdine Law Review

No abstract provided.

The Supreme Court's Most Extraordinary Term - Introduction, Douglas W. Kmiec

Pepperdine Law Review

No abstract provided.

The Gray Zone In The Power Of Local Municipalities: Where Zoning Authority Clashes With State Law, Skye L. Daley

The Journal of Business, Entrepreneurship & the Law

This article will explore the oft-overlooked area of police powers granted to local municipalities by the California Constitution through the lens of marijuana dispensaries. These dispensaries, and the obstacles they face, provide the perfect vantage point from which to survey the current status of zoning power in California. This article will consider the extent and limits of what is known as the “police powers” of local municipalities: the power of cities, towns and counties to regulate, restrict, and proscribe the way in which land can be utilized within its borders. If local municipalities are the creation of the state--indeed, an …

Overreach On The High Seas?: Whether Federal Maritime Law Preempts California's Vessel Fuel Rules , Bradley D. Easterbrooks

Pepperdine Law Review

This Comment addresses whether California’s Vessel Fuel Rules, which require all foreign and U.S. flagged vessels traveling within twenty-four miles of California's coastline to use low-sulfur content fuels, is preempted by the Supremacy Clause of the U.S. Constitution. More specifically, this Comment addresses whether the Clean Air Act, the International Convention for the Prevention of Pollution from Ships (MARPOL), the Submerged Lands Act, and/or general principles of federal maritime law prohibit the California Air Resources Board from enforcing its Vessel Fuel Rules against vessels engaged in maritime commerce in navigable waters, particularly waters beyond the three-mile band beyond the California …

Textualism And Obstacle Preemption, John D. Ohlendorf

John D Ohlendorf

Commentators, both on the bench and in the academy, have perceived an inconsistency between the Supreme Court’s trend, in recent decades, towards an increasingly formalist approach to statutory interpretation and the Court’s continued willingness to find state laws preempted as “obstacles to the accomplishment and execution of the full purposes and objectives of Congress,” — so-called “obstacle preemption.” This Article argues that by giving the meaning contextually implied in a statutory text ordinary, operative legal force, we can justify most of the current scope of obstacle preemption based solely on theoretical moves textualism already is committed to making.

The Article …

Medical Marijuana Zoned Out: Local Regulation Meets State Acceptance And Federal Quiet Acquiescence, Patricia E. Salkin, Zachary Kansler

Patricia E. Salkin

Sixteen states and the District of Columbia currently permit the medical use of marijuana, yet state statutes fail to account for the challenges that confront municipal planners and officials whose agenda includes public health, safety and welfare of residents, including minor children. The intensity of the problem is perhaps most evident in Los Angeles, where there are approximately 800 dispensaries. Varying statutory approaches are provided for individuals to legitimately acquire the drug - they may grow it themselves, they may obtain it from their primary caregiver, or they may obtain it from a licensed dispensary. This raises a number of …

Climate Change Litigation In The Wake Of Aep V. Connecticut And Aes V. Steadfast: Out To Pasture, But Not Out Of Steam, Cecilia O'Connell Miller

Golden Gate University Environmental Law Journal

On April 19, 2011, two courts heard oral arguments in cases that will define the future of climate change litigation for decades to come. In American Electric Power Co. v. Connecticut (hereinafter AEP), the United States Supreme Court considered whether environmental advocates can use a federal common-law nuisance claim as a vehicle for seeking redress for climate change accruing from greenhouse gas (hereinafter GHG) emissions. Just a hundred miles south that same day, the Virginia Supreme Court heard oral arguments in AES Corporation v. Steadfast (hereinafter Steadfast), in which Virginia’s highest court considered whether a commercial general liability …

Vol. 3 No. 2, Spring 2012; Grounding The Preemptive Effect Of The Federal Aviation Act: A Look At The Third Circuit's Recently Modified Field Preemption Ruling In Elassaad V. Independence Air, Inc. And The Effect Of Wyeth V. Levine, Edward J. Boula Iii

Northern Illinois Law Review Supplement

Whether claims of negligence or product liability are preempted by the Federal Aviation Act currently splits the federal circuits. Despite over sixty years of federal control and significant changes to the statutory scheme, there is no consensus among courts as to what extent the Federal Aviation Act preempts state-based standards of care. Through interpretation of the Federal Aviation Act, most circuits have attempted to delineate how, why, and to what extent claims are preempted, but have reached markedly different results. Instead of clarifying the issue, the Supreme Court further complicated the matter in a recent decision which could pose implications …

The Power To Regulate: State Vs. Federal Authority In Immigration Law, Mallory E. Young

Chancellor’s Honors Program Projects

No abstract provided.

Explaining The Rise Of State And Local Immigration Laws, Pratheepan Gulasekaram

Pratheepan Gulasekaram

This Article provides a systematic empirical investigation of the genesis of state and local immigration regulations, discrediting the popular notion that they are caused by uneven demographic pressures across the country. Instead, we find systematic evidence for the significance of political contexts such as the strength of political parties in states and localities. The story we tell in this paper is both political and legal: understanding immigration politics uncovers vital truths about the recent rise of subnational involvement in a policy arena courts and commentators have traditionally ascribed to the federal government. This recognition of the political dynamics of immigration …

Movsesian V. Victoria Vericherung And The Scope Of The President's Foreign Affairs Power To Preempt Words, Cindy Galway Buys, Grant Gorman

Northern Illinois University Law Review

This article addresses the continuing struggle of the federal courts to define the scope of the federal government’s foreign affairs power to preempt state law. Recently, the Ninth Circuit Court of Appeals did an about face in Movsesian v. Victoria Versicherung, which involved a claim that a California statute using the phrase “Armenian Genocide” is preempted by a few informal nonbinding statements of executive policy made to Congress objecting to the use of those words in Congressional resolutions. In Movsesian I, the Ninth Circuit found the California statute preempted in a decision that would have expanded the federal government’s foreign …

Empowering States: A Rebuttal To Dr. Greve, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.

Congress's Power To Preempt The States, Stephen Gardbaum

Pepperdine Law Review

In this Article, part of a symposium on federal preemption of state tort law, I build upon my earlier work on the nature of preemption to try and deepen the conceptual and constitutional foundations of the subject. I argue that this neglected dimension must be moved to center stage if preemption doctrine is to have a coherent and principled framework. In particular, the key issues are the nature, source, and limits of Congress's power to preempt the states. The result is that preemption should be understood as a discretionary power of Congress the source of which lies in the Necessary …

Reflections On Hines V. Davidowitz: The Future Of Obstacle Preemption, Kenneth W. Starr

Pepperdine Law Review

No abstract provided.

Inside Agency Preemption, Catherine M. Sharkey

Michigan Law Review

A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes-an ascendancy …

A Federal Baseline For The Right To Vote, John M. Greabe

John M Greabe

A number of states have laws that define domicile for purposes of voting in terms that would disenfranchise those state residents who do not plan to remain in the state permanently, or even indefinitely. This essay argues that such laws are preempted by the federal constitutional concept of state citizenship, which is informed by the traditional definition of domicile set forth in the Restatement (Second) of Conflict of Laws. Under that definition, all United States citizens with a physical presence in a state and an intention to make the state their home for the time at least are citizens of …

The Ghost That Slayed The Mandate, Kevin C. Walsh

Law Faculty Publications

Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation's individual mandate to buy health insurance is unconstitutional. Virginia's lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed …

Beneficiaries Of Misconduct: A Direct Approach To It Theft, Andrew Popper

Articles in Law Reviews & Other Academic Journals

Stolen information technology (IT) is a domestic and global problem. Theft of IT by upstream producers has a pernicious effect on the competitive market and violates fundamental policies designed to protect those who create and invent such assets. Companies profiting from stolen IT are not just free-riding on the successes of those who design and produce the products and ideas that are a driving force in the U.S. economy – they are destabilizing rational pricing and distorting lawful competition by virtue of outright theft. Current legal recourse is insufficient to address such misconduct; new approaches are needed at the state …

Undocumented Workers And Concepts Of Fault: Are Courts Engaged In Legitimate Decisionmaking, Christine N. Cimini

Articles

This Article examines judicial decisionmaking in labor and employment cases involving undocumented workers. Labor and employment laws, designed to protect all workers regardless of immigration status, often conflict with immigration laws designed to deter the employment of undocumented workers. In the absence of clarity as to how these differing policy priorities should interact, courts are left to resolve the conflict. While existing case law appears to lack coherence, this Article identifies a uniform judicial reliance upon “fault-based” factors. This Article offers a structure to understand this developing body of law and evaluates the legitimacy of the fault-based decisionmaking modalities utilized …

An Economic Perspective On Preemption, Keith N. Hylton

Faculty Scholarship

This Essay has two goals. The first is to present an economic theory of preemption as a choice among regulatory regimes. The optimal regime choice model is used to generate specific implications for the court decisions on preemption of products liability claims. The second objective is to extrapolate from the regime choice model to consider its implications for broader controversies about preemption.

Regulation A And The Jobs Act: A Failure To Resuscitate, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

Regulation A offers small businesses an exemption from the registration requirements of the Securities Act of 1933. The exemption is generally consistent with the obligation of the Securities and Exchange Commission to fashion exemptions that balance investor protection and capital formation. From the perspective of small businesses, the exemption may appear to provide an efficient access to external capital.

Regulation A, however, has fallen into nearly complete disuse. The millions of small businesses in this country, all of which at some point need external capital to survive and grow, simply do not use Regulation A.

Two reasons account for small …

Immigration Sanctuary Policies: Constitutional And Representative Of Good Policing And Good Public Policy, Bill Hing

Bill Ong Hing

Sanctuary ordinances or policies that constrain local authorities from assisting in federal immigration enforcement do not receive the same political and media attention as anti-immigrant laws enacted by states and local governments. In the political struggle over the rights of undocumented immigrants in the United States, the greater media and political focus on anti-immigrant measures, such as Arizona’s S.B. 1070 and similar policies in cities like Hazleton, Pennsylvania, and Farmers Branch, Texas, is understandable.

With much less fanfare, the legality of sanctuary policies also has been challenged. In this article I review the case law that specifically has involved the …

Beneficiaries Of Misconduct: A Direct Approach To It Theft, Andrew Popper

Andrew Popper

Stolen information technology (IT) is a domestic and global problem. Theft of IT by upstream producers has a pernicious effect on the competitive market and violates fundamental policies designed to protect those who create and invent such assets. Companies profiting from stolen IT are not just free-riding on the successes of those who design and produce the products and ideas that are a driving force in the U.S. economy – they are destabilizing rational pricing and distorting lawful competition by virtue of outright theft. Current legal recourse is insufficient to address such misconduct; new approaches are needed at the state …