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Author: James T. O'Reilly
Publisher: American Bar Association
ISBN: 9781590317440
Category : Law
Languages : en
Pages : 252
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Book Description
Preemption is a doctrine of American constitutional law, under which states and local governments are deprived of their power to act in a given area, whether or not the state or local law, rule or action is in direct conflict with federal law. This book covers not only the basics of preemption but also focuses on such topics as federal mechanisms for agency preemption, implied forms of preemption, and defensive use of federal preemption in civil litigation.
Author: James T. O'Reilly
Publisher: American Bar Association
ISBN: 9781590317440
Category : Law
Languages : en
Pages : 252
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Book Description
Preemption is a doctrine of American constitutional law, under which states and local governments are deprived of their power to act in a given area, whether or not the state or local law, rule or action is in direct conflict with federal law. This book covers not only the basics of preemption but also focuses on such topics as federal mechanisms for agency preemption, implied forms of preemption, and defensive use of federal preemption in civil litigation.
Author: Israel Goldowitz
Publisher:
ISBN:
Category :
Languages : en
Pages : 54
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Book Description
The Employee Retirement Income Security Act's preemption provision was designed to ensure uniform national standards for participant benefits and fiduciary conduct. ERISA broadly preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." According to the legislative history, "[w]ith the preemption of the field we round out the protection afforded participants by eliminating the threat of conflicting and inconsistent State and local regulations."Early U.S. Supreme Court decisions accomplished this result, giving the "relate to" language a literal interpretation and sweeping application. Ironically, this weakened participants' right to sue. Starting with New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., the Supreme Court began to limit the breadth of ERISA preemption. Lower courts have not uniformly followed suit, and litigators must carefully analyze these decisions to determine whether state law claims survive ERISA preemption. In another important trend, the Supreme Court's decision in Kentucky Ass'n of Health Plans, Inc. v. Miller has had a significant effect on lower courts' interpretation of the insurance savings clause.Because ERISA completely preempts most state law claims, a party without an ERISA claim may often have no claim. When a plan is collectively bargained, Section 301 of the Labor-Management Relations Act, 1947, may also completely preempt state law. This chapter also addresses the effects of complete preemption on jurisdiction and removal.
Author: David Goodwin
Publisher:
ISBN:
Category :
Languages : en
Pages : 78
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Book Description
Ordinarily, in federal practice, a plaintiff is master of the complaint. But the doctrine of "complete preemption," which affects certain federal laws, allows a defendant to recharacterize a plaintiff's state claims as being federal claims in disguise. An ordinary contract dispute, for instance, can transform into a pension battle, or a copyright action; and, thus recast, the lawsuit can be removed to federal court.The Puzzle of Panel Processing: ERISA, Complete Preemption, and the Federal Jurisdiction Gap traces, from its inception, the curious case of Sexton v. Panel Processing, which began as a state whistleblower suit and ended as a marquee Sixth Circuit decision about the Employee Retirement Income Security Act of 1974, the statutory behemoth more commonly known as ERISA. By tracing the path of Panel Processing and its odd procedural outcome, the piece highlights a possible gap between federal-question jurisdiction and the complete preemption process, a gap which has the potential to lead to unclear and frustrating jurisdictional outcomes at late stages of litigation. A modest tweak to federal practice-the sua sponte scrutiny of all removal notices premised on preemption doctrines-is proposed as the simplest practical solution to this problem.
Author: James Beck
Publisher: Law Journal Press
ISBN: 9781588521217
Category : Actions and defenses
Languages : en
Pages : 982
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Book Description
This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
Author: Charles Alan Wright
Publisher:
ISBN:
Category : Civil procedure
Languages : en
Pages : 972
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Book Description
Author: Joseph F. Zimmerman
Publisher: State University of New York Press
ISBN: 0791482731
Category : Political Science
Languages : en
Pages : 304
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Book Description
Congressional Preemption provides an in-depth account of the use of preemption powers by Congress to either partially or completely remove regulatory authority from state and local governments in a wide variety of fields. Author Joseph F. Zimmerman exposes the inadequacies of the two current theories of United States federalism—dual and cooperative—by exploring the impact of Congress' frequent use of its preemption powers since 1965. While the dual and cooperative federalism theories retain a degree of explanatory power, Zimmerman considers why they do not explain the profound systemic changes produced by congressional preemption. Other topics covered include congressional use of conditional grants-in-aid, crossover sanctions, tax credits, tax sanctions, and partial and complete redemption; the theory of political safeguards of federalism; and the Blackmun Thesis, which encourages states to seek relief from preemption statutes in Congress and not the courts. The book concludes with postulates of a broader theory of federalism and recommendations addressed to Congress to reinvigorate the federal system.
Author: Martin H. Redish
Publisher:
ISBN:
Category : Law
Languages : en
Pages : 252
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Book Description
Author: Robert J. Pauly
Publisher: Routledge
ISBN: 1351897616
Category : Political Science
Languages : en
Pages : 203
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Book Description
Placing the second US-Iraq conflict in the context of emerging trends in international relations, this exceptional, timely volume examines the broad framework of US policy toward Iraq under the administration of George W. Bush. The Second Iraq War marks the third time since 1991 that the United States has invaded a Muslim country, and this book details not only the specifics of the conflict, but the war's broad impact on US relations with Muslim states, both in a regional and global context. It analyzes the development of the previous US policy of containment to the new doctrine of preemption. The volume also: ¢ Examines the linkages between Al Qaeda's attacks on the United States on 11 September 2001 and the prosecution of the Second Iraq War. ¢
Author: Joseph F. Zimmerman
Publisher: SUNY Press
ISBN: 9780791465646
Category : Political Science
Languages : en
Pages : 304
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Book Description
Examines the use of preemption powers by Congress to completely or partially remove regulatory authority from state and local governments.
Author: United States. Advisory Commission on Intergovernmental Relations
Publisher:
ISBN:
Category : Exclusive and concurrent legislative powers
Languages : en
Pages : 100
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Book Description
