Center for Progressive Reform

Preemption Choice

The Theory, Law, and Reality of Federalism's Core Question

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.

Editor:  William W. Buzbee, Professor of Law and the Director of the Emory Environmental and Natural Resources Law Program; CPR Member Scholar.


  • Robert Verchick, Loyola University, New Orleans; CPR Member Scholar.
  • Nina Mendelson, University of Michigan; CPR Member Scholar
  • Robert A. Schapiro, Emory University.
  • David C. Vladeck, Georgetown University; CPR Member Scholar.
  • Trevor W. Morrison, Columbia University.
  • William W. Buzbee, Emory University; CPR Member Scholar.
  • Chris Schroeder, Duke University; then-CPR Member Scholar.
  • Sandy Zellmer, University of Nebraska; CPR Member Scholar.
  • Robert L. Glicksman, University of Kansas; CPR Member Scholar.
  • Bradford R. Clark, George Washington University Law School.
  • William Funk, Lewis & Clark College; CPR Member Scholar.
  • Thomas O. McGarity, University of Texas; CPR Member Scholar.
  • William L. Andreen, University of Alabama; CPR Member Scholar.
  • David E. Adleman, University of Arizona; CPR Member Scholar.
  • Kirsten H. Engel, University of Arizona.

Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question is published by Cambridge University Press.

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© Center for Progressive Reform, 2013