My new paper with Erin O’Hara O’Connor has just been posted. The paper analyzes preemption in light of the theories presented in our book, The Law Market. I earlier discussed our evolving ideas and their application to the Supreme Court’s recent arbitration and immigration decisions. Here’s the abstract:
The scope of federal preemption of state law has been plagued by uncertainty and confusion. The courts have applied a set of presumptions on an ad hoc and conflicting basis. Part of the problem is that the courts purport to be interpreting legislative intent while actually making unarticulated substantive policy judgments about the outcome of specific cases. This approach frustrates development of coherent preemption doctrine. Courts should consider a conceptually obvious but as yet unexplored factor in their decisions. Specifically, where Congressional intent is unclear, preemption determinations should consider whether the states have effectively allocated sovereign authority among themselves through choice-of-law rules. Where states have achieved such “horizontal coordination,” Congress often has little need to usurp the states’ role as laboratories for experimenting with potentially diverse substantive laws. Our novel approach preserves both the benefits of local and state sovereignty and Congress’s role of coordinating US laws where necessary. It also provides a coherent policy for guiding preemption decisions where Congressional intent is unclear.
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