The Shifting Preemption Paradigm: Conceptual and Interpretive Issues

Recent decisions have signaled a subtle shift away from the Supreme Court\u27s categorical approach to the issue of federal preemption of state law, and toward a preemption continuum in which the implied preemption theories may inform an express preemption analysis. Yet, the Court as a whole has avoided addressing the issues arising from the integration of the doctrines. In this Article, Professor Jordan explores some of these difficult issues. The conceptual issues concern when and how the implied theories should be used in an analysis involving an express preemption clause. She analyzes the Court\u27s recent use of the implied theories in a case involving an express preemption provision, and notes that the opinion is ground-breaking from a conceptual perspective: The Court\u27s opinion suggests that, even when Congress has spoken through an express preemption clause, a federal statutory scheme may impliedly preempt state laws beyond the scope of the express clause-and beyond what would be superseded by the Supremacy Clause due to a direct conflict. Professor Jordan thus concludes that the Court\u27s failure to grapple with the issues has opened the door to integration of the doctrines unnecessarily wide. The interpretive issue arises because the implied preemption analysis represents a more purposive approach to statutory interpretation, while the express preemption analysis reflects a classic textual approach. The issue is which approach should be used in an analysis that integrates the doctrines. Professor Jordan\u27s analysis reveals that the Court\u27s recent use of textu- alism while applying the stands as an obstacle theory of implied preemption unduly circumscribes the preemption analysis. She concludes that, although textualism may be acceptable in some contexts, it is incompatible with the fundamental tenets underlying the preemption doctrines