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102 Nw. U. L. Rev. 811 (2008)
Monophonic Preemption

handle is hein.journals/illlr102 and id is 815 raw text is: Copyright 2008 by Northwestern University School of Law                     Printed in U.S.A.
Northwestern University Law Review                                           Vol. 102, No. 2
MONOPHONIC PREEMPTION
Robert A. Schapiro*
INTRODUCTION
In the 1990s, the United States Supreme Court embarked on a federal-
ism revolution.' In several doctrinal areas, the Court reinvented older prin-
ciples to apply new limits on the power of the national government. With
the retirement of Justice Marshall and the appointment of Justice Thomas in
1991, a new conservative majority struck down a series of federal laws as
violating constitutional principles of federalism. For the moment, that
prong of the federalism revolution appears to have abated.' Much scholarly
and public attention has now turned to another aspect of the Court's federal-
ism jurisprudence, the preemption of state law.4 In recent years, the Court
has invalidated many state statutes and state judicial decisions, finding them
preempted by federal law. Commentators have pointed out that this side of
the federalism story has by far the greater impact. Preemption issues arise
frequently,5 and an aggressive approach to preempting state law poses a
* Professor of Law, Emory University School of Law. Email: robert.schapiro@emory.edu. I am
grateful for the helpful comments of Robert B. Ahdieh and William W. Buzbee. Priya Bhoplay and Mi-
chael Eber provided skilled research assistance. Terry Gordon and Will Haines of the Emory University
School of Law Library also offered valuable aid.
I See generally Erwin Chemerinsky, The Federalism Revolution, 31 N.M. L. REV. 7 (2001).
2 See, e.g., United States v. Morrison, 529 U.S. 598 (2000); Printz v. United States, 521 U.S. 898
(1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996); United States v. Lopez, 514 U.S. 549, 567-68
(1995); New York v. United States, 505 U.S. 144 (1992).
3 The Court refused to extend Lopez and Morrison in Gonzales v. Raich, 545 U.S. 1 (2005), and re-
fused to extend its sovereign immunity jurisprudence in Central Virginia Community College v. Katz,
546 U.S. 356 (2006), and United States v. Georgia, 546 U.S. 151 (2006). However, the Court may be
only one vote shy of a major new limitation on the authority of the federal government to promulgate
environmental regulations. See Rapanos v. United States, 547 U.S. 715 (2006) (plurality opinion).
4 See, e.g., Stephen Gardbaum, Congress's Power to Preempt the States, 33 PEPP. L. REV. 39
(2005); Caleb Nelson, Preemption, 86 VA. L. REV. 225 (2000).
5 See Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767, 768 (1994)
(characterizing preemption as almost certainly the most frequently used doctrine of constitutional law
in practice); Lisa Heinzerling, The Commercial Constitution, 1995 SUP. CT. REV. 217, 217 (asserting
that, with regard to the antidiscrimination component of the dormant commerce clause, few constitu-
tional principles give the Court as regular... business).

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