by William W. Buzbee (ed.). Cambridge: Cambridge University Press, 2009. 319pp. Hardback. $90.00/£50.00. ISBN: 9780521888059. eBook format. $72.00. ISBN: 9780511474279.
Reviewed by Staci L. Beavers, California State University San Marcos. Email: sbeavers [at] csusm.edu.
Reviewing edited volumes can prove tricky, particularly when the reviewer’s previous exposure to a book’s complex subject matter is somewhat limited. In reading this volume with “fresh eyes,” I found the authors’ work truly eye-opening in that it powerfully brought home to me the complexities and the impacts of federal policy-makers’ decisions to preempt state policy discretion. While this deceptively slim volume (319 pages) made for dense and challenging reading for me as a social scientist rather than a legal scholar, it was definitely a worthwhile investment of my time as a professor who teaches a range of courses within US politics.
The thirteen chapters in this volume, along with the introduction and conclusion by editor William W. Buzbee, focus attention on various aspects of preemption, whereby the federal government can limit or eliminate state-level policy responsibilities and choices in a multitude of policy areas. Taken together, the chapters explore the many players involved in preemption decisions across all branches and all levels of government, as well as citizens who may lose access to legal remedies or political options if the federal government stems state policy alternatives.
All of the book’s contributors are legal scholars currently holding academic appointments, with most having also logged time serving in various posts in the federal government. While the authors consistently acknowledge federal preemption authority under the Constitution’s Supremacy Clause, they also consistently challenge a host of federal decisions to preempt. The book seeks to “contribute to the development of normative arguments against preemption by using theoretical, legal, and historical analysis” (Buzbee, p.3), with authors typically supporting “regulatory schemes . . . embrac[ing] overlapping, shared, and often-intertwined jurisdiction” (Buzbee, p.2). The “norm” established with the Supreme Court’s acceptance of the New Deal and rejection of the dual federalism tradition in 1937 (Schapiro, p.41) provides the preferred model for these authors, whereby “partial preemption” provides “minimal federal protections, or floors” that still allow “states [to] retain latitude to enact non-conflicting positive law and litigants can continue to seek relief in [state] court[s] through common law regimes” (Buzbee, pp.2-3). Case and agency decision examples across chapters illustrate the breadth of preemption’s potential reach, ranging from regulations of grain elevators to immigration to greenhouse gases (all of which are discussed by Christopher H. [*289] Schroeder in Chapter 6, “Supreme Court Preemption Doctrine”). However, a few areas receive particular focus, most notably environmental policy. (Environmental policy is addressed across several separate chapters, but most particularly in Buzbee’s “Federal Floors, Ceilings, and the Benefits of Federalism’s Institutional Diversity,” Chapter 5; William L. Andreen’s “Delegated Federalism Versus Devolution: Some Insights from the History of Water Pollution Control,” Chapter 12; and David E. Adelman’s and Kirsten H. Engel’s “Adaptive Environmental Federalism,” Chapter 13).
Though the book’s premise is reasonably simple, the materials in some chapters are extraordinarily complex for those without legal training and/or regulatory backgrounds. I remain skeptical of the latter half of editor Buzbee’s early assertion that the “book’s chapters are offered at a level of legal rigor that will provide insights to lawyers, legal scholars, and law students, but it is also written to be accessible to other disciplines, especially students and scholars of government, political science, business and regulation, economics, and history” (p.4). While a few chapters could be easily integrated into an undergraduate course in judicial process (David C. Vladeck’s Chapter 3 on “Preemption and Regulatory Failure Risks” and Thomas O. McGarity’s Chapter 11, “The Regulation-Common Law Feedback Loop in Nonpreemptive Regimes,” immediately come to mind), undergraduate instructors teaching in fields such as constitutional law, environmental policy, and public administration who are looking for readings on preemption would need to consider carefully the accessibility of the readings offered here. Instead, I would suggest that this book should be strongly recommended reading for the actual players in the federal government, serving across the legislative, executive, and judicial branches, who make the decisions regarding preemption with which state and local officials and their constituents have to live. In Chapter 4, “The State Attorney General and Preemption,” Trevor W. Morrison argues for increased consideration of the authority of states’ attorneys general in federal preemption decisions. Morrison states very clearly that he is pitching his arguments primarily at federal legislators and agency officials (p.81), and this seems an appropriate target audience for many of the chapters.
While the authors consistently concede that preemption is the prerogative of the federal government, significant concern is registered over expansive exercises of preemption authority by various federal agencies during the George W. Bush era. Asserted by William Funk (Chapter 10, “Preemption by Federal Agency Action”) to be the Bush Administration’s unilateral attempt both to impose limits on state-level tort litigation and to reduce business regulation more broadly (p.225), critics in this volume repeatedly express concern that the executive branch may be going too far here. (In addition to Funk’s chapter, also see particularly Christopher H. Schroeder’s Chapter 6, “Supreme Court Preemption Doctrine.”) In light of the Bush administration’s recent exit from office, and given the recurring assertions in the book that the Bush record marked such a significant break from past policy, I believe that the book’s timeliness could have been [*290] extended by some attention to likely directions with the coming of a new administration. Depending on when the book went to press, perhaps even simply a brief “afterword” would provide some clues to whether the dangers the authors ascribe to the Bush administration are likely to be continued into the near future and/or whether future administrations may be more open to the normative arguments offered here. Given the book’s title and the repeated theme of “preemption choice,” some hints of likely future choices would be helpful.
While each of the book’s chapters could stand alone as a strong discussion of preemption for its intended target audience, the organization of the book’s chapters occasionally proved frustrating for me as a non-expert in this field. For example, I found that reading Robert L. Glicksman’s very complex “Federal Preemption by Inaction” (Chapter 8) would have been facilitated by the earlier placement of William Funk’s discussion of “Preemption by Federal Agency Action” (Chapter 10), in which Funk walks readers through the argument that agencies may be illegitimately usurping preemption authority and that greater attention should be paid to legislative language regarding delegations of preemption authority (p.215). On the other hand, as much as I enjoyed reading both of the chapters advocating the value of state-level tort litigation, the chapters by David C. Vladeck (Chapter 3) and Thomas O. McGarity (Chapter 11) seemed just a bit redundant to me. The chapters do focus on separate case examples, and McGarity’s later chapter shines a more positive light on the contributions of federal regulatory decisions and also addresses how state court litigation can contribute to federal policy changes. However, both chapters really focus on the argument that state tort litigation makes indispensable contributions to public safety by allowing state courts discretion to use common-law tools, including financial judgments against various industries, to incentivize industries’ greater attention to such matters as product safety and environmental considerations than may be required or enforced by federal law. Fundamentally, both authors argue simply that further preemption of state tort law is unacceptable. Finally, separate discussions of representation of the interests of states’ citizens in Trevor W. Morrison’s “The State Attorney General and Preemption” (Chapter 4) and Bradford R. Clark’s “Process-Based Preemption” (Chapter 9) echo each other more subtly, and readers might have benefited from seeing more explicit connections between the respective discussions of representation via Morrison’s emphasis on the interest of “democratic accountability” served by states’ attorneys general (see especially pp.84-87) and Bradford’s discussion of the representation of the respective states in Congress and the importance of this representation in determining what constitutes a legitimate federal preemption decision.
Perhaps the most frustrating chapters of the book to ponder were those giving the most in-depth attention to judicial preemption doctrines, in that these chapters help make clear just how unclear and uneven the Court’s overall record in this area has been. Even as Christopher H. Schroeder echoes previous authors in his skepticism of the value of the distinctions he discusses [*291] (p.125, cites omitted), Schroeder’s “Supreme Court Preemption Doctrine” (Chapter 6) goes a long way toward sorting out the many forms of preemption recognized by the Court over time. In Chapter 7, “When Congress Goes Unheard: Savings Clauses’ Rocky Judicial Reception,” Sandi Zellmer suggests wording for Congress to insert in future legislation to make its intent regarding preemption more clear and less subject to possible misinterpretation or limitation by federal judges (p.165). However, given Zellmer’s earlier assertion that, in cases dealing with state regulatory authority, “it is hard to avoid the conclusion that judicial outcomes appear to be driven by a results-oriented, antiregulatory sentiment rather than by statutory language or overarching congressional goals” (p.145), it would be helpful to see further discussion of how and why Zellmer believes that her recommended language will be treated more respectfully by judges.
In short, this book is a challenging read. However, it is a useful investment of time for professionals who make and have to abide by preemption decisions, as well as for academics who teach in the many fields in which preemption should be getting a share of attention.
© Copyright 2009 by the author, Staci L. Beavers.