Northwestern University Law Review

Scholarly journal that features legal commentary, emerging developments, topic analysis, and controversial issue debate.

Articles from Vol. 102, No. 2, 2008

A Collective Action Perspective on Ceiling Preemption by Federal Environmental Regulation: The Case of Global Climate Change
INTRODUCTIONIn this Article, we draw on collective action theory1 and traditional preemption doctrine2 to develop a framework for thinking about environmental preemption. We then apply it to regulation of greenhouse gases (GHGs) in response to global...
Ambient Harassment under Title Vii: Reconsidering the Workplace Environment
Marcia Hocevar's manager, Timothy Amundsen, brought pornographic material to work and shared it with others at meetings.1 He threatened female employees with violence and constantly called them "bitches," "fucking bitches," and "fat flicking bitches."2...
A Presumption against Agency Preemption
I. INTRODUCTIONFederal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices...
Cars, Carbon, and Climate Change
INTRODUCTIONSince the advent of major environmental regulatory programs in the 1970s, federal regulation has been justified on the grounds that the federal government must forestall a "race to the bottom": the tendency of states to lower environmental...
Contextualizing Preemption
INTRODUCTIONOver the past two decades, commentators from across the political spectrum have documented courts' unpredictable and inconsistent application of preemption doctrine.1 Some scholars have focused on the analytics of preemption2-what long has...
Democratizing the Law of Federal Preemption
I. INTRODUCTIONThe federal courts are sometimes asked to decide whether a federal health, safety, or environmental standard preempts a stricter standard adopted by one or more states. The practical stakes for advocates of environmental and consumer protection...
Executive Preemption
INTRODUCTIONPreemption of state regulatory authority by national law is the central federalism issue of our time. Most analysis of this issue has focused on the preemptive effects of federal statutes. But as Justice White observed in INS v. Chadha,1...
Federal Preemption, and Federal Common Law, in Nuisance Cases
INTRODUCTION: A BACKWATER IN A GROWTH INDUSTRYAs we move our way firmly into the twenty-first century, extensive regulation by all levels of government forms a permanent part of the legal landscape.' The moment two levels of government can act on the...
Foreword: Symposium on Ordering State-Federal Relations through Federal Preemption Doctrine
This special issue of the Northwestern University Law Review brings together contributions from scholars and practitioners whose work focuses on preemption doctrine, or the theory of when and how federal law displaces state law. On April 5, 2007, nearly...
Lessons from United States V. Stein: Is the Line between Criminal and Civil Sanctions for Illegal Tax Shelters a Dot?
"Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes. "-Judge Learned Hand.[dagger]I. INTRODUCTIONIn...
MASSACHUSETTS V. EPA: BREAKING NEW GROUND ON ISSUES OTHER THAN GLOBAL WARMING[dagger]
After the Supreme Court handed down its split 5-4 decision in Massachusetts v. EPA,1 various media outlets trumpeted the significance of the case. As one example, the Chicago Tribune proclaimed: "EPA must regulate greenhouse gases."2 The problem, of...
Monophonic Preemption
INTRODUCTIONIn the 1990s, the United States Supreme Court embarked on a "federalism revolution."1 In several doctrinal areas, the Court reinvented older principles to apply new limits on the power of the national government. With the retirement of Justice...
Preemption and Institutional Choice
INTRODUCTIONPublic law scholarship is increasingly turning from questions about the content of law to questions about which institution should determine the content of the law-that is, to "deciding who decides.'" Implicit in this turn is the understanding...
Restraining Federal Preemption When There Is an "Emerging Consensus" of State Environmental Laws and Policies
INTRODUCTIONThe model of cooperative federalism, which engages both the federal and state governments in setting and meeting environmental goals, has dominated the environmental regulatory field since the 1970s. It integrates national policies and interstate...
TEACHERS, LEAVE THOSE KIDS ALONE? ON FREE SPEECH AND SHOUTING FIERY EPITHETS IN A CROWDED DORMITORY[dagger]
Plainly . . . no mandate in our Constitution leaves States and governmental units powerless to pass laws to protect the public from the kind of boisterous and threatening conduct that disturbs the tranquility of spots selected by the people either for...
The Fraud Caveat to Agency Preemption
INTRODUCTION: THE FRAUD CAVEATFederal agencies are flexing their preemptive muscles. More and more, they are asserting control over the realms of consumer and product safety-realms that have traditionally been the province of state tort law.1 This trend...