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Law Outlines Constitutional Outlines

Preemption Outline

Updated Preemption Notes

Constitutional Outlines


Approximately 114 pages

This Constitutional Law outline lays out what you need to know for your exam in easy-to-understand sections. The outline is keyed with a table of contents, so that it is easy to find exactly what you need while studying or on exam day. Case law is color coded so you can quickly find the appropriate to case to cite in your exam. Subjects in the outline include: methods to Constitutional interpretation, judicial review, limits on judicial power, executive powers, congressional powers, federalism, t...

The following is a more accessible plain text extract of the PDF sample above, taken from our Constitutional Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:


  1. Supremacy Clause: Acrticle VI = Constitution is Supreme Law of the Land

  2. Express preemption – federal law expressly preempts state or local law

    1. Real question is one of intent – whether Congress intended to preempt or not certain actions

  3. Implied preemption – clear congressional intent to preempt state or local law

    1. Conflicts preemption – compliance with both is physical impossibility

      1. Obstacle preemption as a variant: state law stands as an obstacle

        1. Determine what intent of federal law is

        2. Figure out wheter state law interferes with that objective, which happens if

          1. Compliance is physically impossible; or

          2. The state statute frustrates a federal objective

    2. Field Preemption – scheme of federal law is so pervasive as to make reasonable the inference that Congress left no room for states to supplement it

      1. The nature of the regulated subject matter permits no other conclusion (e.g. national security); or

      2. Congress has unmistakably so ordained by “making federal regulation so pervasive as to make reasonable the inference that Cognress left no room for the State to supplement it”

  4. Rules

    1. Strong presumption against preemption (particularly field)

    2. Strong presumption necessary to avoid creating a regulatory vacuum

    3. Federalism concerns – it’s important to respect states so we err in their favor

  5. Lorillard Tobacco Co. v. Reilly(2000)- Tobacco Co believes that the AG of Massachusetts regulations governing advertising and sale of tobacco was preempted by the Federal Cigarette Labeling Advertising Act – prescribes mandatory health warnings for cigarette packaging and advertisisng and the regulations violated 1st and 14th amendments.

    1. Held: Federal law preempts Massachussettes regulation

    2. Justice O’Connor’s analysis:

      1. Recognizes a presumption against preemption in areas of traditional state authority

      2. Examines congressional intent

        1. Changes in the language of the preemption provision over time

        2. There’s a specific statement in the federal statute regarding preemption, and that statement is broader than the old one

        3. It is impossible to maintain a distinction between state regulation of...

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