Margaret Tarkington (Brigham Young University – J. Reuben Clark Law School) has posted Rejecting the Touchstone: Complete Preemption and Congressional Intent after Beneficial National Bank v. Anderson (South Carolina Law Review, Vol. 59, No. 225, 2008) on SSRN. Here is the abstract:
The paper examines complete preemption – a jurisdictional doctrine that allows for removal based on a federal preemption defense contrary to the well-pleaded complaint rule. The doctrine was expanded by the Supreme Court in 2003 in Beneficial National Bank v. Anderson. This paper explores efficiency, separation of powers, and federalism problems created by Anderson, both generally and in the context of a specific statutory scheme – the Carmack Amendment. The paper then offers a new framework, modeled on concurrent jurisdiction case law, that ensures reliance on congressional intent but still allows a narrowly defined area for the judiciary to provide federal defensive removal where necessary to effectuate specific congressional purposes.