Paul Diller has posted Intrastate Preemption (forthcoming B.U. L. Rev.) on SSRN. Here is the abstract:
City policy experimentation is a catalyst for change at the state and national levels. From gay rights to global warming to regulating trans fats, cities and other forms of local government are adopting new and innovative policies in the wake of inaction by the higher levels of government. The legality of these policies is frequently challenged, however, by claims that a city’s ordinance has been preempted by state law. Despite the crucial importance of intrastate preemption to the question of city power, it has heretofore received scant academic attention. In this paper I demonstrate how, as currently applied, intrastate preemption dampens local policy innovation, which has a negative effect on the state and national political processes. I argue that state courts, drawing on their institutional advantages, should take a new approach to intrastate preemption that facilitates good-faith policy experimentation by cities while discouraging parochial and exclusionary action.
Another example of the unjustified neglect of state constitutional law as a focus of academic attention. (A oft-repeated complaint and a pet peeve of the great Hans Linde!)
Here is a bit more from the article:
Cities often lead in setting policy that Congressmen and state legislators have failed to address, whether due to greater policy risk aversion or fear of offending entrenched and well-financed interest groups that wield significant influence.69 Once a city or a number of cities have put an issue on the nation’s policy agenda, however, Congress or state legislatures may feel more compelled to address it.70 Cities, therefore, can serve as a “destabilizing” force in state and national policy debates, disrupting the state legislative and Congressional stasis on matters of significance.71
Very interesting & recommended!