In the American system of dual sovereignty, states have primary authority over matters of state law. In nonpreemptive areas in which state and federal regimes are parallel—such as matters of court procedure, certain statutory law, and even some constitutional law—states have full authority to legislate and interpret state law in ways that diverge from analogous federal law. But, in large measure, they do not. It is as if federal law exerts a gravitational force that draws states to mimic federal law even when federal law does not require state conformity. This Article explores the widespread phenomenon of federal law’s gravitational pull. The Article begins by identifying the existence of a gravitational force throughout a range of procedural and substantive law felt by a host of state actors, including state rulemakers, legislators, judges, and even the people themselves. It then excavates some explanatory vectors to help understand and appreciate why federal law exerts a gravitational force. Finally, the Article considers some normative concerns with state acquiescence to the federal gravitational pull.
The Gravitational Force of Federal Law
- Scott Dodson
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- Harry & Lillian Hastings Research Chair and Professor of Law, UC Hastings College of the Law. I co‐originated the basic idea of this Article with David Hoffman, who graciously allowed me to proceed with publishing the Article, and I am indebted to him for our many conversations about the idea and its development. Thanks to those who read and commented on early drafts, or who engaged me in preliminary conversations, including Bill Dodge, Mike Dorf, Aziz Huq, Evan Lee, Justin Long, Zach Price, Reuel Schiller, and Jodi Short. I am also grateful to those who shared reactions to the Article at the UC Hastings 10‐10 Workshop and the ASU Legal Scholars Workshop.