Preemption Choice

Preemption Choice

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This book examines the theory, law, and reality of preemption choice. The Constitution's federalist structures protect states' sovereignty but also create a powerful federal government that can preempt and thereby displace the authority of state and local governments and courts to respond to a social challenge. Despite this preemptive power, Congress and agencies have seldom preempted state power. Instead, they typically have embraced concurrent, overlapping power. Recent legislative, agency, and court actions, however, reveal an aggressive use of federal preemption, sometimes even preempting more protective state law. Preemption choice fundamentally involves issues of institutional choice and regulatory design: should federal actors displace or work in conjunction with other legal institutions? This book moves logically through each preemption choice step, ranging from underlying theory to constitutional history, to preemption doctrine, to assessment of when preemptive regimes make sense and when state regulation and common law should retain latitude for dynamism and innovation.NHTSA has not upgraded the standard despite the introduction and popularity of SUVs, such as the Ford Explorer, ... has NHTSA ever issued a rollover standard, which would better regulate the performance of vehicles in real-world accidents. ... the roof crush was so severe that he sustained serious spinal damage, leaving him a quadriplegic with only limited use of ... the thickness of the steel in several parts of the roof structure would have reduced roof collapse to two to three inches .

Title:Preemption Choice
Author: William W. Buzbee
Publisher:Cambridge University Press - 2008-12-15

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