The Law School Authority Home Case Briefs Outlines Resources Pre Law Home » Law School Outlines Bank Administrative Law Administrative Law course outlines. Constitutional Law II Constitutional Law II course outlines. Injunctions Injunctions course outlines. Sales Sales course outlines. Criminal Procedure Admiralty Law Admiralty Law course outlines. Contracts Contracts law outlines. Insurance Law Insurance law course outlines. Tax Law Tax law outlines. Evidence Antitrust Law Antitrust Law course outlines. Copyright Copyrightlaw course outlines. Intellectual Property Law Intellectual property outlines. Trademark Law Trademark law outlines. Professional Responsibility Agency & Partnership Agency & partnership law outlines. Corporations Corporations law outlines. Labor Law Labor Law course outlines. Torts Torts course outlines. White Collar Crime Bankruptcy Bankruptcy course outlines. Criminal Law Criminal Law course outlines. Legal Ethics Legal Ethics course outlines. Trusts & Estates Trusts & Estates law outlines. Community Property Business Associations Business associations course outlines. Criminal Procedure Criminal procedure course outlines. Legal History Legal History course outlines. Water Law Water Law course outlines. Labor Law Civil Procedure Civil Procedure course outlines. Dispute Resolution Dispute Resolution course outlines. Marital Property Marital Property law outlines. White Collar Crime White Collar Crime course outlines. Family Law Civil Rights Civil rights outlines. Employee Benefits Law Employee Benefits law outlines. Patent Law Patent law course outlines. Wills Wills course outlines. Commercial Transactions Commercial transactions outlines. Environmental Law Environmental law course outlines. Products Liability Products Liability course outlines. Worker's Compensation Worker's Compensation law outlines. Community Property Community property law outlines. Evidence Evidence course outlines. Professional Responsibility Professional Responsibility course outlines. Comparative Law Comparative Law outlines. Family Law Family Law course outlines. Property Property law course outlines. Computer & Internet Law Computer & Internet Law course outlines. Health Law Health law outlines. Real Property Real property law outlines. Constitutional Law Constitutional law outlines. Immigration Law Immigration Law course outlines.

The Law School Authority

• Home
• Case Briefs
• Outlines
• Resources
• Pre Law

Navigate to... Home Case Briefs Outlines Resources Pre Law

Administrative Law Administrative Law course outlines.	Constitutional Law II Constitutional Law II course outlines.	Injunctions Injunctions course outlines.	Sales Sales course outlines.	Criminal Procedure
Admiralty Law Admiralty Law course outlines.	Contracts Contracts law outlines.	Insurance Law Insurance law course outlines.	Tax Law Tax law outlines.	Evidence
Antitrust Law Antitrust Law course outlines.	Copyright Copyrightlaw course outlines.	Intellectual Property Law Intellectual property outlines.	Trademark Law Trademark law outlines.	Professional Responsibility
Agency & Partnership Agency & partnership law outlines.	Corporations Corporations law outlines.	Labor Law Labor Law course outlines.	Torts Torts course outlines.	White Collar Crime
Bankruptcy Bankruptcy course outlines.	Criminal Law Criminal Law course outlines.	Legal Ethics Legal Ethics course outlines.	Trusts & Estates Trusts & Estates law outlines.	Community Property
Business Associations Business associations course outlines.	Criminal Procedure Criminal procedure course outlines.	Legal History Legal History course outlines.	Water Law Water Law course outlines.	Labor Law
Civil Procedure Civil Procedure course outlines.	Dispute Resolution Dispute Resolution course outlines.	Marital Property Marital Property law outlines.	White Collar Crime White Collar Crime course outlines.	Family Law
Civil Rights Civil rights outlines.	Employee Benefits Law Employee Benefits law outlines.	Patent Law Patent law course outlines.	Wills Wills course outlines.
Commercial Transactions Commercial transactions outlines.	Environmental Law Environmental law course outlines.	Products Liability Products Liability course outlines.	Worker's Compensation Worker's Compensation law outlines.
Community Property Community property law outlines.	Evidence Evidence course outlines.	Professional Responsibility Professional Responsibility course outlines.
Comparative Law Comparative Law outlines.	Family Law Family Law course outlines.	Property Property law course outlines.
Computer & Internet Law Computer & Internet Law course outlines.	Health Law Health law outlines.	Real Property Real property law outlines.
Constitutional Law Constitutional law outlines.	Immigration Law Immigration Law course outlines.

The Supremacy Clause and Federal Preemption The issue: How should courts determine whether a federal law preempts state law? Introduction The preemption doctrine derives from the Supremacy Clause of the Constitution which states that the "Constitution and the laws of the United States...shall be the supreme law of the land...anything in the constitutions or laws of any State to the contrary notwithstanding." This means of course, that any federal law--even a regulation of a federal agency--trumps any conflicting state law. Preemption can be either express or implied. When Congress chooses to expressly preempt state law, the only question for courts becomes determining whether the challenged state law is one that the federal law is intended to preempt. Implied preemption presents more difficult issues, at least when the state law in question does not directly conflict with federal law. The Court then looks beyond the express language of federal statutes to determine whether Congress has "occupied the field" in which the state is attempting to regulate, or whether a state law directly conflicts with federal law, or whether enforcement of the state law might frustrate federal purposes. Federal "occupation of the field" occurs, according to the Court in Pennsylvania v Nelson (1956), when there is "no room" left for state regulation. Courts are to look to the pervasiveness of the federal scheme of regulation, the federal interest at stake, and the danger of frustration of federal goals in making the determination as to whether a challenged state law can stand. Pennsylvania vs Nelson 350 U.S. 497 (1956) and Its Potential Relevance to the Debate Over Arizona's Tough Legislation Dealing with Illegal Aliens In April 2010, Arizona's governor signed legislation making it a crime to be in the state without having obtained lawful entry into the U.S. State police were authorized to demand proof of citizenship for persons they had "reasonable suspicion" to believe were illegal aliens. The Pennsylvania v Nelson case provides a possible basis for a preemption challenge to the Arizona law. Here's language from Chief Justice Warren's opinion for the Court, striking down a Pennsylvania law making it a state crime to advocate the violent overthrow of the United States government: "As was said by Mr. Justice Holmes in Charleston & Western Carolina R. Co. v. Varnville Furniture Co: "When Congress has taken the particular subject matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go." Second, the federal statutes "touch a field in which the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same subject." Congress has devised an all-embracing program for resistance to the various forms of totalitarian aggression. Our external defenses have been strengthened, and a plan to protect against internal subversion has been made by it. It has appropriated vast sums, not only for our own protection, but also to strengthen freedom throughout the world. It has charged the Federal Bureau of Investigation and the Central Intelligence Agency with responsibility for intelligence concerning Communist seditious activities against our Government, and has denominated such activities as part of a world conspiracy. It accordingly proscribed sedition against all government in the nation -- national, state and local. Congress declared that these steps were taken "to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government. . . . " Congress having thus treated seditious conduct as a matter of vital national concern, it is in no sense a local enforcement problem. As was said in the court below: "Sedition against the United States is not a local offense. It is a crime against the Nation. As such, it should be prosecuted and punished in the Federal courts, where this defendant has, in fact, been prosecuted and convicted and is now under sentence. It is not only important, but vital, that such prosecutions should be exclusively within the control of the Federal Government. . . . " Third, enforcement of state sedition acts presents a serious danger of conflict with the administration of the federal program. Since 1939, in order to avoid a hampering of uniform enforcement of its program by sporadic local prosecutions, the Federal Government has urged local authorities not to intervene in such matters, but to turn over to the federal authorities immediately and unevaluated all information concerning subversive activities...." Question: Illegal entry into the United States, the act punished by the Arizona law, is also "a crime against the nation." In what ways, if any, do you think immigration enforcement of the sort required by the Arizona law is distinguishable from the subversive advocacy enforcement that the Court found preempted in Pennsylvania v Nelson? In Silkwood v Kerr-McGee (1984), the Court, voting 5-4, found that a $10 million dollar punitive damages award (in a case litigated by famed attorney Gerry Spence) against a nuclear power plant for negligently allowing employee (and union activist) Karen Silkwood to be contaminated with plutonium was not impliedly pre-empted by federal law. Even though the Court had recently held that state regulation of the safety aspects of a federally-licensed nuclear power plant was preempted, the Court drew a different conclusion with respect to Congress's desire to displace state tort law--even though the tort actions might be premised on a violation of federal safety regulations. Cipollone v Liggett Group (1992) was a closely-watched case concerning the extent of an express preemption provision in two cigarette labeling laws of the 1960s. The case was a wrongful death action brought against tobacco companies on behalf of Rose Cipollone, a lung cancer victim who had started smoking cigarette in the 1940s. The Court considered the preemptive effect on state law of a provision that stated "No requirement based on smoking and health shall be imposed under state law with respect to the advertising and promotion of cigarettes." The Court concluded that several types of state tort actions were preempted by the provision, but allowed other types to go forward. Perhaps the most interesting aspect of the case, from a constitutional standpoint, is the debate between justices over whether express preemption provisions should be read narrowly (a view adopted by seven justices) or read normally (a view favored by Justices Thomas and Scalia). In American Insurance Association v Garamendi (2003), the Court considered the constitutionality of a California law designed to help California Holocaust survivors collect on unpaid insurance claims from German insurance companies. Despite the absence of any clear statement in any executive agreement preempting state laws such as that of California, the Court, voting 5 to 4, found that the state Act conflicted with national policy and "stands in the way of [the President’s] diplomatic objectives.” The four dissenters included both liberals (Ginsburg and Stevens) and conservatives (Scalia and Thomas). The dissenters argued, "Courts step out of their proper role when they rely on no legislative or even executive text, but only on inference and implication, to preempt state laws on foreign affairs grounds." Gonzales v Oregon (2006) considered whether Congress, in enacting the Controlled Substances Act, intended to pre-empt state laws such as that of Oregon's which authorized physicians (under strictly controlled circumstances) to prescribe lethal doses of controlled drugs for terminally ill patients. (The case also raised the administrative law issue of whether the Attorney General acted within the scope of his statutory authority when he issued regulations criminalizing the prescription of lethal drugs by physicians.) The Court, ruling 5 to 4, held that the Act did not authorize pre-emption of Oregon's Death with Dignity Act. Recent Supreme Court Decisions

변호사 이재욱의 미국법 이야기 Lawyer Lee,jaewook's USA Law

The Supremacy Clause and Federal Preemption
The issue: How should courts determine whether a federal law preempts state law?

Introduction The preemption doctrine derives from the Supremacy Clause of the Constitution which states that the "Constitution and the laws of the United States...shall be the supreme law of the land...anything in the constitutions or laws of any State to the contrary notwithstanding."  This means of course, that any federal law--even a regulation of a federal agency--trumps any conflicting state law. Preemption can be either express or implied.  When Congress chooses to expressly preempt state law, the only question for courts becomes determining whether the challenged state law is one that the federal law is intended to preempt.  Implied preemption presents more difficult issues, at least when the state law in question does not directly conflict with federal law.  The Court then looks beyond the express language of federal statutes to determine whether Congress has "occupied the field" in which the state is attempting to regulate, or whether a state law directly conflicts with federal law, or whether enforcement of the state law might frustrate federal purposes. Federal "occupation of the field" occurs, according to the Court in Pennsylvania v Nelson (1956), when there is "no room" left for state regulation.  Courts are to look to the pervasiveness of the federal scheme of regulation, the federal interest at stake, and the danger of frustration of federal goals in making the determination as to whether a challenged state law can stand. Pennsylvania vs Nelson 350 U.S. 497 (1956) and Its Potential Relevance to the Debate Over Arizona's Tough Legislation Dealing with Illegal Aliens In April 2010, Arizona's governor signed legislation making it a crime to be in the state without having obtained lawful entry into the U.S.   State police were authorized to demand proof of citizenship for persons they had "reasonable suspicion" to believe were illegal aliens.  The Pennsylvania v Nelson case provides a possible basis for a preemption challenge to the Arizona law.  Here's language from Chief Justice Warren's opinion for the Court, striking down a Pennsylvania law making it a state crime to advocate the violent overthrow of the United States government: "As was said by Mr. Justice Holmes in Charleston & Western Carolina R. Co. v. Varnville Furniture Co: "When Congress has taken the particular subject matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go." Second, the federal statutes "touch a field in which the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same subject." Congress has devised an all-embracing program for resistance to the various forms of totalitarian aggression. Our external defenses have been strengthened, and a plan to protect against internal subversion has been made by it. It has appropriated vast sums, not only for our own protection, but also to strengthen freedom throughout the world. It has charged the Federal Bureau of Investigation and the Central Intelligence Agency with responsibility for intelligence concerning Communist seditious activities against our Government, and has denominated such activities as part of a world conspiracy. It accordingly proscribed sedition against all government in the nation -- national, state and local. Congress declared that these steps were taken "to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government. . . . " Congress having thus treated seditious conduct as a matter of vital national concern, it is in no sense a local enforcement problem. As was said in the court below: "Sedition against the United States is not a local offense. It is a crime against the Nation. As such, it should be prosecuted and punished in the Federal courts, where this defendant has, in fact, been prosecuted and convicted and is now under sentence.  It is not only important, but vital, that such prosecutions should be exclusively within the control of the Federal Government. . . . " Third, enforcement of state sedition acts presents a serious danger of conflict with the administration of the federal program. Since 1939, in order to avoid a hampering of uniform enforcement of its program by sporadic local prosecutions, the Federal Government has urged local authorities not to intervene in such matters, but to turn over to the federal authorities immediately and unevaluated all information concerning subversive activities...." Question: Illegal entry into the United States, the act punished by the Arizona law, is also "a crime against the nation."  In what ways, if any, do you think immigration enforcement of the sort required by the Arizona law is distinguishable from the subversive advocacy enforcement that the Court found preempted in Pennsylvania v Nelson? In Silkwood v Kerr-McGee (1984), the Court, voting 5-4,  found that a $10 million dollar punitive damages award (in a case litigated by famed attorney Gerry Spence) against a nuclear power plant for negligently allowing employee (and union activist) Karen Silkwood to be contaminated with plutonium was not impliedly pre-empted by federal law.  Even though the Court had recently held that state regulation of the safety aspects of a federally-licensed nuclear power plant was preempted, the Court drew a different conclusion with respect to Congress's desire to displace state tort law--even though the tort actions might be premised on a violation of federal safety regulations. Cipollone v Liggett Group (1992) was a closely-watched case concerning the extent of an express preemption provision in two cigarette labeling laws of the 1960s.  The case was a wrongful death action brought against tobacco companies on behalf of Rose Cipollone, a lung cancer victim who had started smoking cigarette in the 1940s.  The Court considered the preemptive effect on state law of a provision that stated "No requirement based on smoking and health shall be imposed under state law with respect to the advertising and promotion of cigarettes."  The Court concluded that several types of state tort actions were preempted by the provision, but allowed other types to go forward.  Perhaps the most interesting aspect of the case, from a constitutional standpoint, is the debate between justices over whether express preemption provisions should be read narrowly (a view adopted by seven justices) or read normally (a view favored by Justices Thomas and Scalia). In American Insurance Association v Garamendi (2003), the Court considered the constitutionality of a California law designed to help California Holocaust survivors collect on unpaid insurance claims from German insurance companies.  Despite the absence of any clear statement in any executive agreement preempting state laws such as that of California, the Court, voting 5 to 4, found that the state Act conflicted with national policy and "stands in the way of [the President’s] diplomatic objectives.” The four dissenters included both liberals (Ginsburg and Stevens) and conservatives (Scalia and Thomas).  The dissenters argued, "Courts step out of their proper role when they rely on no legislative or even executive text, but only on inference and implication, to preempt state laws on foreign affairs grounds."  Gonzales v Oregon (2006) considered whether Congress, in enacting the Controlled Substances Act, intended to pre-empt state laws such as that of Oregon's which authorized physicians (under strictly controlled circumstances) to prescribe lethal doses of controlled drugs for terminally ill patients.  (The case also raised the administrative law issue of whether the Attorney General acted within the scope of his statutory authority when he issued regulations criminalizing the prescription of lethal drugs by physicians.)  The Court, ruling 5 to 4, held that the Act did not authorize pre-emption of Oregon's Death with Dignity Act. Recent Supreme Court Decisions

Moore/Marsden Example: Community Improvement of Separate Property Richard purchased property for $12,500 in 1990 before his marriage. In 1995, when he married Sienna, the property was worth $50,000. The couple made extensive improvements during their marriage at a cost of $77,500. When Richard and Sienna separated in 2005, equity in the property was $450,000. The community and separate property interests are calculated as follows: Total Investment $12,500 purchase price + 37,500 premarital/preimprovement appreciation + 77,500 community improvements $127,500 total investment Richard’s Separate Property Investment $12,500 purchase price + $37,500 premarital appreciation $50,000 total separate investment Ratio of Separate and Community Property Interests $50,000 / $127,500 = 39.22% separate property interest $77,500 / $127,500 = 60.78% community property interest Appreciation in Equity $450,000 equity at date of separation – 50,000 less equity at date of marriage $400,000 appreciation during marriage Separate and Community Property Shares in Equity Appreciation 39.22% separate property share of equity appreciation during marriage: $400,000 x .3922 = $156,880 60.78% community property share of equity appreciation during marriage: $400,000 x .6078 = $243,120 Interests on Dissolution of Marriage Sienna’s one-half of community interest in appreciation: $243,120 / 2 = $121,560 Richard’s separate and community interests: $156,880 separate interest in equity appreciation + 121,560 one-half of community interest in appreciation + 12,500 purchase price + 37,500 premarital/preimprovement appreciation $328,440 © 2006 Judicial Council of C

Moore/Marsden Example:
Community Improvement of Separate Property
Richard purchased property for $12,500 in 1990 before his marriage. In 1995, when
he married Sienna, the property was worth $50,000. The couple made extensive
improvements during their marriage at a cost of $77,500. When Richard and Sienna
separated in 2005, equity in the property was $450,000. The community and separate
property interests are calculated as follows:
Total Investment
 $12,500 purchase price
+ 37,500 premarital/preimprovement appreciation
+ 77,500 community improvements
 $127,500 total investment
Richard’s Separate Property Investment
 $12,500 purchase price
+ $37,500 premarital appreciation
 $50,000 total separate investment
Ratio of Separate and Community Property Interests
$50,000 / $127,500 = 39.22% separate property interest
$77,500 / $127,500 = 60.78% community property interest
Appreciation in Equity
 $450,000 equity at date of separation
– 50,000 less equity at date of marriage
 $400,000 appreciation during marriage
Separate and Community Property Shares in Equity Appreciation
39.22% separate property share of equity appreciation during marriage:
$400,000 x .3922 = $156,880
60.78% community property share of equity appreciation during marriage:
$400,000 x .6078 = $243,120
Interests on Dissolution of Marriage
Sienna’s one-half of community interest in appreciation:
$243,120 / 2 = $121,560
Richard’s separate and community interests:
 $156,880 separate interest in equity appreciation
+ 121,560 one-half of community interest in appreciation
+ 12,500 purchase price
+ 37,500 premarital/preimprovement appreciation
 $328,440
© 2006 Judicial Council of C

previous next >> §4.09 Community Payments on Separate Property—Moore/Marsden Rule When community funds are used to make payments to acquire separate property, the community receives a proportionate interest in the property in the ratio that (1) the payments on the purchase price with community funds bear to (2) the payments made with separate funds. [Marriage of Moore (1980) 28 C3d 366, 371-372.] The separate property interest is credited with any prenuptial appreciation. [Marriage of Marsden (1982) 130 CA3d 426, 438-439.] These guidelines are sometimes referred to as the "Moore/Marsden rule." Amounts paid for interest, taxes, and insurance are excluded from when calculating the separate and community interests because they do not contribute to the capital. The amount of a loan taken to secure the property is a Separate property contribution if it was secured by separate assets, or Community property contribution if secured by community assets. [Marriage of Moore, supra, 28 C3d at 372–373.]

			previous   next >>
		§4.09 Community Payments on Separate Property—Moore/Marsden Rule When community funds are used to make payments to acquire separate property, the community receives a proportionate interest in the property in the ratio that (1) the payments on the purchase price with community funds bear to (2) the payments made with separate funds. [Marriage of Moore (1980) 28 C3d 366, 371-372.] The separate property interest is credited with any prenuptial appreciation. [Marriage of Marsden (1982) 130 CA3d 426, 438-439.] These guidelines are sometimes referred to as the "Moore/Marsden rule." Amounts paid for interest, taxes, and insurance are excluded from when calculating the separate and community interests because they do not contribute to the capital. The amount of a loan taken to secure the property is a Separate property contribution if it was secured by separate assets, or Community property contribution if secured by community assets. [Marriage of Moore, supra, 28 C3d at 372–373.]