Complete Preemption Research Articles

Unpuzzling Complete Preemption: Beneficial National Bank v. Anderson After Two Decades in the Circuit Courts

Unpuzzling Complete Preemption: Beneficial National Bank v. Anderson After Two Decades in the Circuit Courts

Performance evaluation for secondary users in finite-source cognitive radio networks with dynamic preemption limit

Primary users (PUs) have higher priority and are able to preempt the channels used by secondary users (SUs) in cognitive radio networks (CRNs). The traditional complete preemption mechanism does not restrict the preemption behavior of PUs, and it isn’t easy to guarantee SUs’ transmission performance when PU packets arrive frequently. To ensure SUs’ most essential continuous transmission, we propose a preemption mechanism with a dynamic preemption limit in a finite-source CRN system. The preemption limit is adjusted dynamically by the central controller in accordance with transmitted SU packets’ quantity to restrict PUs’ preemption behavior. We develop a 2-dimensional Markov-chain based on this to construct a discrete-time preemptive queueing model. With the solved system’s steady-state probability distribution, we obtain some performance index expressions. Moreover, we analyze the system’s performance in various network conditions and compare our proposed preemption mechanism to the traditional complete preemption mechanism to demonstrate its superiority by employing numerical experiments. Numerical results show that the proposed preemption mechanism with a dynamic preemption limit can improve SUs’ transmission performance and adapt to the more complex network environments. Finally, we create a utility function to calculate the ideal amount of SUs that will provide the optimal comprehensive performance.

Spectrum allocation strategy with a probabilistic preemption scheme in cognitive radio networks: analysis and optimization

In this paper, we propose a probabilistic preemption scheme in cognitive radio networks that will simultaneously ensure the primary user (PU) packets’ Quality of Service (QoS) and the secondary user (SU) packets’ transmission continuity. This scheme differs from a complete preemption scheme or a complete non-preemption scheme in conventional cognitive radio networks in that a PU packet can interrupt an SU packet’s transmission and preempt the channel with a certain probability that is termed the preemptive probability. In order to decrease the possible negative influence of SU packets on PU packets’ QoS, we introduce an access threshold, i.e. a limit on the size of the SU packet buffer, which controls the access of the SU packets. As part of the mathematical analysis of the probabilistic preemption scheme, we establish a discrete-time priority queueing model and then characterize it by a two-dimensional Markov chain. Based on the steady-state solution of the system we give formulas for several performance measures of the network users. We also provide numerical results to highlight the influence of the preemptive probability and the access threshold on the system performance. Moreover, we also compare the system performance of the proposed probabilistic preemption scheme with the preemptive and non-preemptive schemes by using numerical results. Finally, we build an optimization framework by the help of properly chosen net benefit function to optimize the preemptive probability and the access threshold jointly.

Clarifying Complete Preemption: Identifying What Courts Are Doing and Advocating for a Uniform Standard

Clarifying Complete Preemption: Identifying What Courts Are Doing and Advocating for a Uniform Standard

The Preemptive Scope of the National Bank Act's Employment 'At Pleasure' Provision from Westervelt to Wiskotoni to Wiersum: Deconstructing the Conflict between Plain Meaning and Plain English

This paper analyzes the preemptive power and scope of the National Bank Act of 1864 (NBA) with regard to federal and state labor law by deconstructing the key cases that have considered the issue, yet have come to differing conclusions. Although findings range from complete preemption to non-preemption of state law, all courts generally agree that the NBA’s “at pleasure” language preempts any contractual claims under employment “at will.” In fact, this analysis asserts that the “at pleasure” language of the NBA means exactly that—“at will”—and nothing more. This analysis also suggests that the “complete preemption” doctrine arose from the anachronistic case of Westerveld (8th Cir. 1896) and its “complete contractual preemption” progeny, in which preemption was properly applied to contractual claims. However, it is argued that the complete contractual preemption doctrine was then erroneously extended to cases involving non-contractual claims via the dictum found in cases such as Wiskotoni (6th Cir. 1983), as most recently argued in Wiersum (11th Cir. 2015). Westerveld and Wiskotoni thus gave rise to a complete preemption fallacy by failing to distinguish between “wrongful” discharge claims based in contract, and “discriminatory” and/or “retaliatory” discharge claims based in tort. With the rise of civil rights laws, to include Title VII and the Dodd-Frank whistleblower statute, the distinction between contractual employment rights under employment at will and the non-contractual employment rights which exist independently of the employment contract—such as the right to be free from discrimination or retaliation—has taken on greater legal significance. Because this distinction has remained unaddressed by the U.S. Supreme Court, the Westerveld-Wiskotoni-Wiersum complete preemption fallacy lives on, sustained by the Lochnerism of the complete preemption courts. This analysis shows that, in order to find complete preemption, one must engage in “two questionable interpretive moves,” as noted in Goonan (S.D.N.Y. 2013): one must first read the NBA at a very high degree of generality in order to find an unlimited “power” of preemption. Then, one must find that the Congress of 1864 had intended that this broad power serve to preempt state employment laws that were then unimagined. As the Goonan court concluded, the argument supporting complete preemption thus requires that a “mountain” of Congressional intent assumptions rest upon a “slender reed” of high generality. Additionally, the complete preemption courts themselves have strayed from their own doctrine by exempting severance payments (“golden parachutes”) from even complete contractual preemption. This exemption of contractual terms arguably reflects the practice of preemption alchemy, inasmuch as this contractual exemption is not extended to non-contractual claims such as retaliatory discharge and discrimination, which the NBA should not preempt, absent express preemption language. In summary, this analysis argues for the non-preemption doctrine, the partial preemption doctrine, and the “retail” preemption doctrine—any of which represent the more sound application of English to the analysis of the NBA’s preemptive power and scope. These three limited preemption doctrines allow claims based on state law to proceed (1) without preemptive effect where state laws advance the purposes of similar federal laws, and (2) with limited preemptive effect where state laws (A) substantially mirror federal laws, (B) are not so dissimilar to federal laws as to warrant preemption, and (C) where state public policy supports the purpose of federal law.

Immigration Enforcement and State Post-Conviction Adjudications: Towards Nuanced Preemption and True Dialogical Federalism

The relationship between federal immigration enforcement and state criminal, post-conviction law exemplifies certain inevitable complexities of preemption and federalism. Because neither perfect uniformity nor complete preemption is possible, we must consider two questions: First, whether (and, if so, how) state courts adjudicating rights should account for legitimate federal immigration law goals, such as uniformity and finality? Second, how should federal courts deploy preemption and federalism principles when faced with challenges by federal authorities to such state court actions? This article offers a framework of “dialogical federalism,” seeking to normalize certain tensions under a rubric of dialogue, rather than formal hierarchy or efficiency. The framework respects state courts’ rights adjudication, while also taking account of the history, current norms, structure of immigration enforcement, and contemporary models of preemption and federalism. State enforcement agents and state courts are deeply engaged in immigration-related processes. But they often must do so in the context of historically powerful sub-federal systems, such as criminal law enforcement, retroactivity analysis, etc. The best state court decisions balance autonomy, fidelity to state precedent, and protections of rights with awareness of federal concerns. There is no precise formula; but nuanced state court adjudications should help federal courts, when considering preemption challenges to state actions, to resist formalistic (and unrealistic) field preemption or plenary power preemption. The benefits of this approach could be substantial. With equal protection as a backstop, it could empower the states to define the confines of political communities, thereby offering a truly transformative model of the new immigration federalism.

The Puzzle of Panel Processing: ERISA, Complete Preemption, and the Federal Jurisdiction Gap

Ordinarily, in federal practice, a plaintiff is master of the complaint. But the doctrine of preemption, which affects certain federal laws, allows a defendant to recharacterize a plaintiff's state claims as being federal claims in disguise. An ordinary contract dispute, for instance, can transform into a pension battle, or a copyright action; and, thus recast, the lawsuit can be removed to federal court.The Puzzle of Panel Processing: ERISA, Complete Preemption, and the Federal Jurisdiction Gap traces, from its inception, the curious case of Sexton v. Panel Processing, which began as a state whistleblower suit and ended as a marquee Sixth Circuit decision about the Employee Retirement Income Security Act of 1974, the statutory behemoth more commonly known as ERISA. By tracing the path of Panel Processing and its odd procedural outcome, the piece highlights a possible gap between federal-question jurisdiction and the complete preemption process, a gap which has the potential to lead to unclear and frustrating jurisdictional outcomes at late stages of litigation. A modest tweak to federal practice-the sua sponte scrutiny of all removal notices premised on preemption doctrines-is proposed as the simplest practical solution to this problem.

Dear SEC: Please Don't Abdicate Your Jobs Act Responsibility to Make Forthcoming 'Regulation A+;' Exemption from Registration Available to Small Businesses

Title IV of the Jobs Act amends Section 3(b) of the Securities Act of 1933 by adding a new Section 3(b)(2). This new statute requires the Commission to adopt regulations (“Section 3(b)(2) Regulations”) that provide an exemption from registration for offerings of up to $50 million. The anticipated Section 3(b)(2) Regulations are often referred to as “Regulation A Plus.” The name used for Title IV of the Jobs Act – “Small Company Capital Formation” – indicates that the purpose of the legislation is to provide small businesses an efficient access external capital. The provisions of Title IV also suggest Regulation A as an appropriate model for the new Section 3(b)(2) Regulations (thus the popular moniker, “Regulation A Plus”). In order for the new Section 3(b)(2) Regulations to provide an efficient access to external capital for small businesses, the new Regulations must solve two problems that have destroyed Regulation A, causing it to fall into essentially total disuse. The first problem for Regulation A is that it is somewhat out of balance, requiring filing and disclosure requirements that may be overly burdensome and that unnecessarily drive up the offering costs of meeting the requirements for the exemption. The second problem – and one that is much more important regarding the non-use of Regulation A – is the effect of registration requirements under state blue sky laws. Meeting the state registration requirements drives the costs of Regulation A offerings to levels that price Regulation A out of the market for exemptions from registration. New Section 3(b)(2) provides the Commission with ample authority to construct new Section 3(b)(2) Regulations that remedy these problems for small businesses attempting to access external capital. The Commission is fully empowered to enact Section 3(b)(2) Regulations that properly balance investor protection and capital formation by requiring efficient levels of disclosures for Section 3(b)(2) offerings. The Commission is also fully empowered to preempt completely state authority over offerings under Section 3(b)(2) Regulations. Unfortunately, history demonstrates that the Commission is unwilling to use its delegated authority to expand the preemption of state authority over state blue sky registration requirements. Without complete preemption of state authority, the Section 3(b)(2) Regulations will be worthless to small businesses, wrecking the apparent purpose of Title IV of the Jobs Act, which is to provide small businesses with an efficient and balanced access to external capital.

Complete Preemption and Copyright: Toward a Successive Analysis

District courts in most circuits face a problem: does the so-called “complete preemption” doctrine apply to the Copyright Act — that is, does the complete preemption doctrine allow a defendant to remove a case that states only state law claims from state court to federal court if the Copyright Act seems to cover the subject matter of the claims? This Article proposes that courts and practitioners need to start arguing the merits of both the complete preemption doctrine and the tests that apply to the doctrine — the congressional intent test, the exclusive federal cause of action test, and the extra element test.Commentators and courts disagree on the merits of using the complete preemption doctrine in context of the Copyright Act. Plaintiffs prefer state courts, and defendants prefer federal courts. Therefore, defendants often remove cases to federal courts, and plaintiffs move to remand cases to state courts. In cases that involve copyrights, sometimes plaintiffs file cases in state courts and omit claims of copyright infringement to avoid federal court jurisdiction, while defendants increasingly assert that causes of action of breach of contract claims and other claims that involve copyrights relate to the Copyright Act. Thus, the complete preemption doctrine allows the defendant to remove the case to federal court. The competing views of commentators and courts inform plaintiffs and defendants sufficiently to allow them to argue the merits of each step of the analysis.

What is the Proper Role of the States in Financial Regulation?

The U.S. system of dividing regulatory authority between the states and the federal government takes on a very different cast for three important financial firms, banking, securities and insurance. According to the Federal Reserve, at the end of 2005, total assets held by these three types of firms were $11.82 trillion, $10.5 trillion and $5.6 trillion, respectively. In banking, federal regulatory power preempts state authority over nationally chartered banks, while state power is primary for state-chartered banks, subject to significant federal constraints on risk. In insurance, state regulatory power preempts federal authority (reverse preemption) for all insurance firms. In between these federalist poles are securities offerings and securities firms that are concurrently subject to state and federal regulation. However, there has been a recent trend of increasing federal preemption in the securities field. It seems odd that we have three different approaches to preemption for three different activities that are increasingly offered in integrated financial service firms. This paper advocates that insurance adopt the dual chartering approach of banking, with complete federal preemption for nationally chartered insurance firms, and that federal preemption be further extended for securities offerings and firms.

Who Should Regulate the Siting of Electric Transmission Lines Anyway? A Jurisdictional Study

The case law addressing the Natural Gas Act's preemption of state and local law regulating the siting of interstate gas pipelines provides important lessons for those seeking to transfer regulatory authority over the siting of interstate electric transmission lines to the federal government. The legislative options range from providing for state and federal concurrent jurisdiction over interstate lines, interstitial regulation by the federal and state governments, involvement and limited participation of state and local governments in a federal proceeding, or the complete preemption of state and local law.

Rethinking Corporate Federalism in the Era of Corporate Reform

Many commentators have criticized the Sarbanes-Oxley Act of 2002 as evidence of the creeping federalization of corporate law. In this Article, I argue that a realistic threat of federalization is necessary to ensure the robust development of corporate law at the state level. Because Delaware enjoys a monopoly position in the market for out-of-state incorporations, there is little pressure on the state to shape its laws to increase protections for shareholders and other constituent groups. Only the federal government can credibly serve as a rival to Delaware. The Sarbanes-Oxley Act's impact on Delaware corporate law demonstrates the potential for a dynamic relationship between state and federal regulation of corporate conduct. Recent Delaware court decisions suggest that Delaware's judiciary has begun to respond to the preemptive threat through adjustments to its corporate law jurisprudence. The courts appear to be moving to more restrictive application of the business judgment rule and more vigorous enforcement of officers' and directors' fiduciary duties. This jurisprudential shift demonstrates that Congress can effectively influence state law through legislative measures that do not require complete preemption of state law.

Auctions of licences and market structure

This paper studies sequential auctions of licences to participate in a symmetric market game. Assuming that the rate at which industry profits decrease with repeated entry is not too large, at the unique solution either a single firm preempts entry altogether or entry occurs in every stage, depending on the net benefit of complete preemption to an incumbent. If we relax the assumption, a third outcome can occur: two firms may coordinate their choices to avoid further entry. The analysis employs a new refinement of Nash equilibrium, the concept of recursively undominated equilibrium.

An experimental evaluation of strategic preemption

This paper reports the results of a series of two-stage, two-person noncooperative games where one player can strategically preempt the other. In one of our designs, the subgame perfect equilibrium entails complete preemption; in the other, it entails partial preemption. The data show that players tend to completely preempt when it is privately optimal. However, when partial preemption is privately optimal, a non-trivial fraction of players persist in choosing the non-preemptive structure. This may result because of occasional irrational behavior following preemptive play, which induces some dominant agents to play less aggressively.

Complete Preemption. Removing the Mystery from Removal

Complete Preemption. Removing the Mystery from Removal

An Experimental Evaluation of Strategic Preemption

This paper reports the results of a series of two-stage, two-person non-cooperative games where one player can strategically preempt the other. In one of our designs, the subgame perfect equilibrium entails complete preemption; in the other, it entails partial preemption. Logit analysis indicates that players tend to completely preempt when it is optimal. However, when partial preemption is optimal, a non-trivial fraction of players persist in choosing the non-preemptive structure. This may result because of occasional irrational behavior following preemptive play, which induces some dominant agents to play less aggressively.

The Breadth of Complete Preemption: Limiting the Doctrine to Its Roots

The Breadth of Complete Preemption: Limiting the Doctrine to Its Roots