Kristen Blankley's recent Florida Law Review article on “Impact Preemption” is worth a read. She goes one step beyond the by-now-well-trodden ground of critiquing the bases for recent Supreme Court arbitration jurisprudence on preemption. Instead, tracing back to the Concepcion case, she suggests that the combination of recent Supreme Court cases has gone beyond field preemption to a status she describes as “impact preemption.” In her words:
Impact preemption raises serious federalism issues because it does not require a conflict between federal and state law. Taken to its logical conclusion, the Court’s impact preemption analysis may prohibit states from regulating any aspect of arbitration that potentially “impacts” the arbitration process. This Article urges the Supreme Court to return to the classic roots of conflict preemption analysis under the FAA. A return to these conflict preemption principles would restore the balance of regulatory power between the states and the federal government, and would restore a measure of predictability for consumers and contracting parties who use the national arbitration system to conduct commerce.
Rather than merely suggest that the Court got its prior analyses wrong (as many have done previously), Blankley instead suggests that the Court has not DONE the preemption analysis (and we are living with the resulting mischief). Her conclusion, therefore, is to urge the Court to engage that analysis, and she trusts that the exercise of doing so will at least alleviate the effects of what she coins “impact preemption.” Again, in her words:
First and foremost, the Court needs to engage in a formal and principled preemption analysis for the FAA. The Court simply cannot continue its arbitration jurisprudence without undertaking this fundamental task. The Court is in an untenable situation precisely because it has not previously engaged in this exercise. The remedy is to engage in this analysis and establish the rules and parameters of arbitration preemption.
I’ve not given the article the level of careful thought it deserves just yet, but it is a refreshingly interesting approach to a puzzle with which many in our field have been struggling. Kudos Kristen.