The Federalist Society

Agency Preemption: Speak Softly But Carry a Big Stick?

May 3, 2007

Ronald A. Cass, Thomas W. Merrill, Catherine M. Sharkey, Daniel E. Troy, Diarmuid F. O'Scannlain

Diarmuid F. O’Scannlain: It is a great pleasure for me to welcome you to our panel today, entitled “Agency Preemption: Speak Softly, but Carry a Big Stick?” As moderator, my task is twofold. First, I hope to frame the panel discussion by reference to preemption law generally, as well as recent events and developments in agency preemption. Secondly, I hope to convince you of the enormous importance of this otherwise arcane topic, because, while it may sound esoteric, it goes to the heart of the constitutional order, in my view. As one scholar explained, the extent to which a federal statute displaces state law affects both the substantive legal rules under which we live and the distribution of authority between the states and the federal government....

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