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Preemption Choice - The Theory, Law, and Reality of Federalism's Core Question (Hardcover, New)
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Preemption Choice - The Theory, Law, and Reality of Federalism's Core Question (Hardcover, New)
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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 a newly 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.
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