• About
    • Login
    View Item 
    •   Institutional Repository Home
    • Law School
    • Vanderbilt Law School Faculty Works
    • View Item
    •   Institutional Repository Home
    • Law School
    • Vanderbilt Law School Faculty Works
    • View Item
    JavaScript is disabled for your browser. Some features of this site may not work without it.

    Browse

    All of Institutional RepositoryCommunities & CollectionsBy Issue DateAuthorsTitlesSubjectsDepartmentThis CollectionBy Issue DateAuthorsTitlesSubjectsDepartment

    My Account

    LoginRegister

    Making Preemption Less Palatable

    Mikos, Robert A.
    : https://ssrn.com/abstract=2756155
    : http://hdl.handle.net/1803/9331
    : 2017

    Abstract

    Congressional preemption constitutes perhaps the single greatest threat to state power and to the values served thereby. Given the structural incentives now in place, there is little to deter Congress from preempting state law, even when the state interests Congress displaces far exceed its own. The threat of preemption has raised alarms across the political spectrum, but no one has yet devised a satisfactory way to balance state and federal interests in preemption disputes. This Article devises a novel solution: state poison pill legislation. Borrowing a page from corporate law, poison pill legislation would enable the states to make preemption less palatable, by threatening to withhold valuable state services from Congress if Congress preempts state law. In more abstract terms, the Article re-imagines preemption as an as-yet untapped opportunity for inter-governmental bargaining, one in which poison pill legislation would facilitate beneficial trades between the state and federal governments over their respective constitutional entitlements. The Article explains how poison pill legislation would work, drawing upon a diverse array of case studies to illustrate the many potential applications of the tactic. It also proffers a normative defense of poison pill legislation, arguing that the tactic should produce better preemption decisions, from a welfarist perspective, without usurping Congress’s legislative prerogatives - a problem endemic to extant solutions like the presumption against preemption. Finally, the Article lays the foundation for future work examining the use of threats to influence other legal decisions apart from preemption.
    Show full item record

    Files in this item

    Thumbnail
    Name:
    Making Preemption Less Palatab ...
    Size:
    3.387Mb
    Format:
    PDF
    Description:
    published article
    View/Open

    This item appears in the following collection(s):

    • Vanderbilt Law School Faculty Works

    Connect with Vanderbilt Libraries

    Your Vanderbilt

    • Alumni
    • Current Students
    • Faculty & Staff
    • International Students
    • Media
    • Parents & Family
    • Prospective Students
    • Researchers
    • Sports Fans
    • Visitors & Neighbors

    Support the Jean and Alexander Heard Libraries

    Support the Library...Give Now

    Gifts to the Libraries support the learning and research needs of the entire Vanderbilt community. Learn more about giving to the Libraries.

    Become a Friend of the Libraries

    Quick Links

    • Hours
    • About
    • Employment
    • Staff Directory
    • Accessibility Services
    • Contact
    • Vanderbilt Home
    • Privacy Policy