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Regulatory void, Federal government, State government, Congress, Preemption


This Article proceeds as follows. In Part I, I introduce the concept of null preemption. I discuss in greater detail the case of regulation of motor vehicle tailpipe greenhouse-gas emissions as a case study of null preemption. In Part II, I explore the contours of null preemption, and then describe, and distinguish among, several paradigmatic settings in which null preemption may arise.

In Part III, I consider the normative case for null preemption. I conclude that the case is narrow. I also consider concerns of institutional choice and argue that even those who generally defend agency preemption of state law should be wary of “back door” assertions of null preemption by agencies, and should therefore support some congressional constraints on regulatory freedom.

In Part IV, I consider how concerns of political economy may explain why null preemption has historically been uncommon, but may become more common in the future. Finally, in Part V, I offer suggestions as to how Congress might constrain regulators from invoking null preemption, and also for courts called upon to review claimed occurrences of null preemption.

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Notre Dame Law Review


© 2010 Jonathan Remy Nash. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice.