preemption

Preemption is a mess.

Supremacy clause preemption still exists. An express preeemption clause in a statute does not undue supremacy clause preemption -- a statute cannot undue a constitutional provision.

In a conflict between state law and federal law, the state law would clearly be preempted under the supremacy clause regardless of any statutory preemption. There is always the problem of what is a conflict. For example, a state copyright law may well not conflict with federal law. But a state copyright law covering the same subject matter as the federal law would be statutorily preempted.

Field preemption in the face of a statutory preemption clause would seem to be a lot more problematic, however.

So one cannot go quite so far into saying that implied preemption is dead, but it certainly is affected by the existence of a statute which may cover the same ground. Once Congress has addressed preemption in the statute, then it would seem that the two main types of preemption left would be statutory and supremacy-clause-conflict preemption.

In my reading of preemption cases and statutes and commentary I would classify at least half of it as unintelligible gibberish or to be more charitable, as complex, subtle, and inscrutable. The rest ranges from dense and difficult to just difficult.

The area is a mess. The concept is easy -- but the actual application of preemption in any but the clearest conflict situation is a mess.

--
Steven D. Jamar
Professor of Law
Director LRW Program (http://www.law.howard.edu/lrw/)
Howard University School of Law
2900 Van Ness Street NW
Washington, DC  20008

vox:  202-806-8017   fax:  202-806-8428
mailto:sjamar[_at_]law.howard.edu

He who loves the law dies either mad or poor.

Thomas Middleton, "The Phoenix," c. 1607