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Federal Preemption at the Supreme Court

By Daniel E. Troy
November 07, 2008
It has been a striking time for federal preemption at the Supreme Court. Last term, the Court heard six preemption cases, deciding four in favor of federal preemption by large margins, one against preemption, and coming to a draw in the sixth case, in which Chief Justice Roberts did not participate. In the coming term, the Court is poised to hear two additional significant preemption cases. Although the number of preemption cases considered by the Court this term is actually somewhat below the historical average, the Court does appear to be deciding in favor of preemption somewhat more often than usual, and by greater margins. This term’s preemption decisions tended to reflect broad a  greement, with a series of nine-, eight-, and seven-Justice majorities—often joining together some of the Court’s most liberal and conservative members...