Extract
Contextualizing Preemption
INTRODUCTION
Over the past two decades, commentators from across the political spectrum have documented courts' unpredictable and inconsistent application of preemption doctrine.1 Some scholars have focused on the analytics of preemption2-what long has been viewed as a straightforward doctrine that did not require much in the way of theorizing-thereby generating some surprisingly helpful insights.3 The renewed scholarly attention also has resulted in proposals that range from recommendations that courts tweak certain doctrinal presumptions,4 completely abandon preemption doctrine,3 or, only somewhat more modestly, wholly restructure preemption doctrine.6 Robert Schapiro's and Thomas MerriH's Symposium proposals, to which this Article largely is directed, fall into the last category.7It is useful to complement the intensive scrutiny to which preemption has been subject with a broader, more contextual analysis that considers preemption alongside other doctrines that seek to accomplish structurally similar ends. Such contextual analysis, it turns out, provides useful perspectives vis-à-vis both present preemption doctrine and recent scholarly proposals.Part I shows that preemption doctrine functions almost identically to the contract doctrine of unenforceability on grounds of public policy, but that each of the two doctrines approaches its respective task in a fundamentally different way: preemption doctrine deploys a "unilateralist" approach that looks only to federal interests, whereas the public policy exception re lies on a "multilateralist" approach that takes account of all stakeholder institutions. Identifying a radically different doctrinal approach to solving a similar problem suggests that contemporary preemption doctrine's approach is neither axiomatic nor self-evident. With the understanding that there is a plausible alternative to preemption doctrine's current approach, Part I then considers why courts have adopted unilateralism in the preemption context, concluding that there is no immediately obvious answer. Indeed, Part I's analysis reveals that justifying today's unilateralist preemption doctrine is even more complicated because a side-by-side analysis of preemption doctrine and the public policy exception suggests that there in fact is a third plausible approach that courts could take: judicial passivity, under which Congress (perhaps in conjunction with agencies) alone makes preemption decisions.Part II confronts the question of how to choose between the three doctrinal approaches. Part II suggests that recent scholarly proposals, including Schapiro's and Merrill's, can be understood as identifying three factors that are relevant to choosing the best approach: (1) the substantive considerations that inform the decision whether state law should be displaced, (2) the institutional competence of various governmental entities to undertake the appropriate analysis, and (3) the legitimacy of each of these governmental entities deciding whether state law is to be preempted. Schapiro's and Merrill's articles make important contributions to answering these questions. Part II summarizes and, where appropriate, critiques their contribu...See the full content of this document
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