Show simple item record

dc.contributor.authorMeltzer, Daniel J.
dc.date.accessioned2014-09-17T16:34:12Z
dc.date.issued2013
dc.identifier.citationDaniel Meltzer, Preemption and Textualism, 112 Mich. L. Rev. 1 (2013).en_US
dc.identifier.issn0026-2234en_US
dc.identifier.urihttp://nrs.harvard.edu/urn-3:HUL.InstRepos:12876708
dc.description.abstractIn the critically important area of preemption, the Supreme Court's approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona's immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court's preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of "obstacle preemption" analysis. Recently, however, Justice Thomas has objected to the Court's failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle preemption be abandoned. Although three other justices have endorsed some aspects of Justice Thomas's approach, no dramatic shift in the Court's approach has yet occurred. This Article examines recent preemption decisions and seeks to explain why textualist premises have so little grip in this domain. One might therefore view this Article as, in part, a case study of the feasibility of textualism. I argue that Congress lacks the capacity, foresight, and linguistic tools to be able adequately to specify in statutory text the proper resolution of the range of preemption issues that invariably arise under regulatory statutes of any complexity. Consequently, the task of fashioning a workable legal system that integrates state and federal law necessarily falls to courts (with assistance in some instances from federal administrative agencies). This Article concludes by examining recent challenges to the presumption against preemption that Professor Nelson posed and Justice Thomas endorsed. It criticizes the Nelson/Thomas understanding that the Supremacy Clause calls for rejection of the presumption against preemption and explains the significant role that that presumption continues to play.en_US
dc.language.isoen_USen_US
dc.publisherMichigan Law Reviewen_US
dc.relation.isversionofhttp://www.michiganlawreview.org/articles/preemption-and-textualismen_US
dc.relation.hasversionhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2313114en_US
dash.licenseOAP
dc.titlePreemption and Textualismen_US
dc.typeJournal Articleen_US
dc.description.versionVersion of Recorden_US
dc.relation.journalMichigan Law Reviewen_US
dash.depositing.authorMeltzer, Daniel J.
dc.date.available2014-09-17T16:34:12Z
workflow.legacycommentsDFen_US
dash.contributor.affiliatedMeltzer, Daniel J.


Files in this item

Thumbnail

This item appears in the following Collection(s)

Show simple item record