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Author: Vincent DiLorenzo Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
This Article explores agency power to preempt state consumer protection legislation. It presents a case study of preemption based on an aggressive posture toward non-acquiescence on the part of the Comptroller of the Currency. The non-acquiescence documented is not only to the uniform decisions of the circuit courts, but also to the United States Supreme Court's statements of the law governing conflict preemption in the field of banking law. The case study also documents agency non-acquiescence to the stated intent of Congress, whenever available in a statute's legislative history. This aggressive posture toward non-acquiescence is a troubling assertion of executive power because of the lack of effective judicial review. The Article documents that under the Chevron deferential standard of review, executive power to broadly set aside state law will not be effectively restrained. The conclusion is that heightened judicial review is justified at least when an agency exhibits that it has not acted as an unbiased forum for the claims of affected industry members, consumers and state governments.
Author: Vincent DiLorenzo Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
This Article explores agency power to preempt state consumer protection legislation. It presents a case study of preemption based on an aggressive posture toward non-acquiescence on the part of the Comptroller of the Currency. The non-acquiescence documented is not only to the uniform decisions of the circuit courts, but also to the United States Supreme Court's statements of the law governing conflict preemption in the field of banking law. The case study also documents agency non-acquiescence to the stated intent of Congress, whenever available in a statute's legislative history. This aggressive posture toward non-acquiescence is a troubling assertion of executive power because of the lack of effective judicial review. The Article documents that under the Chevron deferential standard of review, executive power to broadly set aside state law will not be effectively restrained. The conclusion is that heightened judicial review is justified at least when an agency exhibits that it has not acted as an unbiased forum for the claims of affected industry members, consumers and state governments.
Author: William W. Buzbee Publisher: Cambridge University Press ISBN: 1139474812 Category : Law Languages : en Pages : 337
Book Description
This book examines the theory, law, and reality of preemption choice. The Constitution's federalist structures protect states' sovereignty but also create a powerful federal government that can preempt and thereby displace the authority of state and local governments and courts to respond to a social challenge. Despite this preemptive power, Congress and agencies have seldom preempted state power. Instead, they typically have embraced concurrent, overlapping power. Recent legislative, agency, and court actions, however, reveal an aggressive use of federal preemption, sometimes even preempting more protective state law. Preemption choice fundamentally involves issues of institutional choice and regulatory design: should federal actors displace or work in conjunction with other legal institutions? This book moves logically through each preemption choice step, ranging from underlying theory to constitutional history, to preemption doctrine, to assessment of when preemptive regimes make sense and when state regulation and common law should retain latitude for dynamism and innovation.
Author: Jared Elosta Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
In the fall of 2008, at the peak of the financial crisis, Oren Bar-Gill and Elizabeth Warren published a law review article proposing the creation of a new federal agency charged with protecting consumers from dangerous lending practices. Fewer than two years later, in response to the most serious challenge to the United States financial system since the Great Depression, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Adopting the idea of Bar-Gill and Warren, Dodd-Frank created the Consumer Financial Protection Bureau (“CFPB” or “Bureau”), whose mission is to ensure “that markets for consumer financial products and services are fair, transparent, and competitive.” Its architects have argued that if the CFPB had been in place in the mid-2000s, it could have prevented the recent financial crisis, which caused the most severe recession since the 1930s. In their 2008 article, Bar-Gill and Warren argued that a new consumer financial protection agency was needed because, among other reasons, existing federal financial regulators were insufficiently motivated to focus on consumer protection. Bar-Gill and Warren also alleged that the aggressive preemption of state consumer financial protection laws by the Office of the Comptroller of the Currency (“OCC”) in the 2000s weakened consumer financial protection at the state level. Throughout the past decade, consumer advocates, attorneys general, and academics have agreed, criticizing the OCC and the Office of Thrift Supervision (“OTS”) for their use of preemption to prevent states from cracking down on predatory lending. For their part, the OCC and other federal regulators have defended their use of preemption, arguing that the U.S. Constitution requires preemption where state law conflicts with federal law, and that preemption is an important tool for promoting the efficient operation of credit markets. As developed more fully below, both sides of the debate make a compelling argument, creating a preemption dilemma: preemption of state consumer financial protection laws could both harm and benefit consumers. This Recent Development examines how Dodd-Frank changes the relationship between state and federal consumer financial protection authority and helps resolve the preemption dilemma. It argues that Dodd-Frank promotes “dynamic federalism,” an arrangement of governance whereby overlapping authority and competition between state and federal regulators in the area of consumer financial protection has the potential to make the preemption dilemma much less problematic. By creating a powerful new agency in the CFPB while simultaneously weakening the ability of federal regulators to preempt state consumer protection laws, Dodd-Frank creates a new framework for state and federal consumer protection authorities. This innovation in consumer financial protection should satisfy both those arguing for greater state powers to protect their citizens and those emphasizing the need for consistent, nationwide regulations in order to promote efficient credit markets.
Author: Joseph F. Zimmerman Publisher: SUNY Press ISBN: 9780791465646 Category : Political Science Languages : en Pages : 304
Book Description
Examines the use of preemption powers by Congress to completely or partially remove regulatory authority from state and local governments.
Author: James T. O'Reilly Publisher: American Bar Association ISBN: 9781590317440 Category : Law Languages : en Pages : 252
Book Description
Preemption is a doctrine of American constitutional law, under which states and local governments are deprived of their power to act in a given area, whether or not the state or local law, rule or action is in direct conflict with federal law. This book covers not only the basics of preemption but also focuses on such topics as federal mechanisms for agency preemption, implied forms of preemption, and defensive use of federal preemption in civil litigation.
Author: Adam Babich Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
This Article shows that private litigants may use the preemption doctrine to police the national standards of cooperative federalist regulatory programs without undermining the state primacy that Congress intended those programs to preserve. It focuses on the environmental cooperative federalist systems that Congress employs in many anti-pollution laws. Laws that employ these systems encourage states to take the lead in administering regulatory programs that meet minimum national standards for protection of public health and welfare. Preemption doctrine should ensure that state laws do not obstruct attainment of these regulatory systems' lawful goals, yet must also take account of Congress' goal to preserve state primacy. For preemption to operate appropriately in this context, courts must recognize that (a) the ultimate touchstone of preemption analysis is the full federal regulatory purpose, and (b) multiple federal goals drive cooperative federalist schemes. It is then practical to distinguish true conflicts between state action and the full federal regulatory purpose from false conflicts, in which state action may conflict with a particular federal mandate, but not with the federal regulatory purpose when considered as a whole. This distinction can be implemented by sorting state-federal conflicts in cooperative federalist systems into three categories, (1) isolated administrative mistakes, (2) deviations subject to robust federal corrective mechanisms, defined in terms of the cooperative federalist systems' goals, and (3) true conflicts with the full federal regulatory purpose. Preemption of state action in the third category only will allow litigants - whether members of the regulated community or citizens seeking full implementation of regulatory protections - to use preemption doctrine to police, but not undermine, cooperative federalism.
Author: Jon D. Michaels Publisher: Harvard University Press ISBN: 0674737733 Category : Business & Economics Languages : en Pages : 321
Book Description
Americans hate bureaucracy—though they love the services it provides—and demand that government run like a business. Hence today’s privatization revolution. Jon Michaels shows how the fusion of politics and profits commercializes government and consolidates state power in ways the Constitution’s framers endeavored to disaggregate.
Author: Vincent DiLorenzo
Author: Vincent DiLorenzo
Author: William W. Buzbee
Author: Jared Elosta
Author: Joseph F. Zimmerman
Author: Thierry Bourgoignie
Author: James T. O'Reilly
Author: Joseph Francis Zimmerman
Author: Richard Allen Epstein
Author: Adam Babich
Author: Jon D. Michaels