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 innovation.

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.

Receive complimentary lifetime digital access to the eBook with new print purchase. The hottest issue in state and local government today is preemption - the conflict between states and cities over authority in a wide range of sharply-contested areas, including gun control, minimum wages and family leave, anti-discrimination law, environmental protection, and sanctuary policies. This pathbreaking reader comes straight from the front-lines of that conflict. It presents and analyzes in concise form the most important preemption statutes and cases, along with commentary from the leading scholars in the field. Virtually all the material involves disputes that have emerged and decisions handed down in just the last two to three years. Designed for use in courses dealing with states and local governments as a supplement to existing casebooks or on its own, the reader will be a unique and invaluable resource for students, teachers, scholars, and anyone involved in preemption and state-local relations more broadly today.

Does the United States have the right to defend itself by striking first, or must it wait until an attack is in progress? Is the Bush Doctrine of aggressive preventive action a justified and legal recourse against threats posed by terrorists and rogue states? Tackling one of the most controversial policy issues of the post-September 11 world, Michael Doyle argues that neither the Bush Doctrine nor customary international law is capable of adequately responding to the pressing security threats of our times. In Striking First, Doyle shows how the Bush Doctrine has consistently disregarded a vital distinction in international law between acts of preemption in the face of imminent threats and those of prevention in the face of the growing offensive capability of an enemy. Taking a close look at the Iraq war, the 1998 attack against al Qaeda in Afghanistan, and the Cuban Missile Crisis, among other conflicts, he contends that international law must rely more completely on United Nations Charter procedures and develop clearer standards for dealing with lethal but not immediate threats. After explaining how the UN can again play an important role in enforcing international law and strengthening international guidelines for responding to threats, he describes the rare circumstances when unilateral action is indeed necessary. Based on the 2006 Tanner Lectures at Princeton University, Striking First includes responses by distinguished political theorists Richard Tuck and Jeffrey McMahan and international law scholar Harold Koh, yielding a lively debate that will redefine how--and for what reasons--tomorrow's wars are fought.

Is a nation ever justified in attacking before it has been attacked? If so, under precisely what conditions? This volume of new, specially commissioned chapters provides the most definitive assessment to date of the justifiability of preemptive or preventive military action.

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