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13 Va. L. & Bus. Rev. 1 (2019)

handle is hein.journals/valbr13 and id is 1 raw text is: VIRGINIA LAW & BUSINESS REVIEW VOLUME 13 WINTER 2019 NUMBER 1 CRACKING THE PREEMPTION CODE: THE NEW MODEL FOR OTC DERIVATIVES Barry Taylor-Brillt Salvador Da/s famous painting, Gala Contemplating the Mediterranean Sea which at Twent Meters Becomes the Portrait of Abraham I 'ncoln (Homage to Rothko), is prominenty di~played in the main hall of the Teatre-Museu Dali in Das hometown of Figueres, Spain. Up close, it is a painting of Dalis wzfe, Gala. At a distance, the viewer sees it transform into a portrait of Abraham iLincoln. Da/s mastepiece is aperect metaphor for how, under Title V11 of the Dodd-Frank Act, a well-designed preemption model for derivatives comes into view when one steps back far enough to see the bigger picture. I. THE JURISDICTIONAL D IVIDE ......................................................................... 2 II. PREEM PTIO N FOR SW APS ................................................................................ 3 iii. PREEMPTION FOR SECURITY-BASED SWAPS ............................................ 14 C O N C L U SIO N ........................................................................................................ 15 P RIOR to passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act' (Dodd-Frank Act), subsection (2) of section 12(e)2 of the Commodity Exchange Act3 (CEA) contained an express preemption of state SMember, Illinois and North Carolina Bars. A.B., 1979, University of Illinois; J.D., 1983, Northwestern Pritzker School of Law. In the early 1990s, Mr. Taylor-Brill raised awareness of the need for preemption under the Commodity Exchange Act through articles that examined state gaming and bucket shop laws and their potential applicability to swaps and other over-the-counter derivatives. See iqfra note 19. 1 Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (codified as amended in various sections of the U.S. Code). 2 7 U.S.C. § 16(e)(2) (2018).

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