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 an 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 invation.
William W. Buzbee is a Professor at Emory University School of Law and Director of the Environmental and Natural Resources Law Program there. He is a co-author of Environmental Protection: Law and Policy, 5th edition (2007). He has published widely on issues of regulatory federalism, environmental law, and administrative law, and three of his articles have appeared in collections of the best ten articles published in their year regarding environmental or land use law. He has also testified before United States Senate Committees regarding issues of federalism and environmental regulation. Prior to becoming an academic, he practised public interest and private sector law in New York City.