Law, College of
Nebraska Law Bulletin (Selected Issues)
Date of this Version
8-19-2019
Document Type
Article
Citation
Nebraska Law Bulletin (August 29, 2019)
Abstract
In this paper I argue that courts should give agencies a Skidmore-style deference instead of giving agencies Chevron deference or applying a clear statement rule when the agencies interpret a federal banking law as preempting state law. In Part II, I provide some background for my argument by explaining three standards of deference that a court might apply to an agency determination that state law is preempted and by tracing the most recent Supreme Court case to implicate deference to agencies on preemption. In Part III, I present my argument. I first assert that the two alternatives to Skidmore deference discord with Supreme Court precedent on preemption. I next show how Skidmore deference would accord with Supreme Court precedent on preemption. Finally, I demonstrate how Skidmore deference on preemption would produce the best outcomes.
Comments
Copyright 2019, the author