Article submitted to various law reviews, review pending


This article addresses the problem of regulatory gaps that are created through imprecise preemption rulings. It begins with a detailed case study of how railroads were able to enter the highly regulated solid waste industry, to claim that all state oversight is preempted by a federal statute intended to deregulate railroad economics, and to obtain the economic benefits of operating in a regulatory gap. The net result of current preemption doctrine in those cases has been to strip citizens of the power to ensure that waste transfer stations are safe, and this fundamental injustice serves as a backdrop to analyzing current preemption jurisprudence. The Court’s reliance on a presumption against preemption of state laws to interpret federal statutes has declined over time, and this article provides an additional explanation for the presumption’s decline based upon flaws in the original formulation of the doctrine. The article also explores the Court’s current use of regulatory gaps as marking the plausible limits of Congressional intent to preempt, particularly when faced with the preclusion of all tort remedies for individual victims, and argues that the Court’s concern about regulatory gaps should extend to preventive measures that are also based on the states’ police powers and that are the expression of collective rights of self-protection. In addition to the standard federalism concerns that animate restraints on preemption, the article builds on scholarship that suggests additional Constitutional limitations on Congress’s powers to strip remedies from citizens. Finally, the article proposes to correct these trends through a revitalized presumption against preemption, whereby courts would consider whether a preemption ruling will create a regulatory gap, and in those circumstances should require a clear statement that Congress intended to strip remedies designed to prevent the underlying conduct at issue. Such a prudential rule of construction would avoid potential Constitutional issues.


Administrative Law | Constitutional Law | Environmental Law

Date of this Version

March 2007