Re: Preemption

From: John Allison <allisonj[_at_]mail.utexas.edu>
Date: Mon, 04 Jan 1999 16:55:00 -0600

On 1/3/99, Dan Burk <burkdanl[_at_]shu.edu> wrote:
>
> On 01/01/99, Steve Jamar <sjamar[_at_]law.howard.edu> wrote:
> >
> > As I understand it, Larry Weiss is trying to distinguish claims
> > from defenses for Section 301 preemption purposes. One problem
> > with this is that Section 301 speaks in terms of rights, not in
> > terms of how they are being asserted. That is, the preemption
> > happens whether the right is an affirmative claim or a defense
> > to a copyright act claim.
>
> I think Steve's reading here is correct. And, as I mentioned
> elsewhere, I don't see how the distinction matters for implied or
> constitutional preemption purposes, either -- if either a "claim"
> or a "defense" hampers Congress' intent, it has to go.

Dan is unquestionably correct. There is simply no question here for anyone who has studied more than a handful of preemption cases. The cases never even discuss any distinction. There are cases where one pinched by a state statute institutes an action asserting the invalidity of the state statute on preemption grounds, and cases in which the defendant asserts preemption as a defense to attempted state enforcement of a statute. There really is nothing further in this portion of the preemption thread.

John

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John R. Allison
The Spence Centennial Professor of Business Administration Graduate School of Business
University of Texas at Austin
Phone 512-471-9435
FAX 512-471-0587
allisonj[_at_]mail.utexas.edu Received on Mon Jan 04 1999 - 22:53:17 GMT