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Unpublished Paper
Everything Is Presumed in Texas
ExpressO (2015)
  • Benjamin Walther
As this Article will reveal, the Fifth Circuit has traditionally been loath to apply the presumption against preemption in most cases. Texas courts, on the other hand, have consistently employed a particularly strong application of the presumption to all types of preemption cases. This inconsistency between these two jurisdictions creates an incentive for forum shopping. Generally, the courts rely on a defendant’s ability to remove a case to the federal courts to counteract the plaintiff’s exclusive power to decide the forum. This ability, however, is not available to a defendant within the context of preemption cases. As such, there is a heightened need for the two jurisdictions to maintain similar jurisprudence regarding this issue. This Article will discuss the ways in which Texas courts apply a stronger version of the presumption against preemption than does the United States Fifth Circuit Court of Appeals. Part II will analyze the various situations in which the competing jurisdictions invoke the presumption. Part III will briefly discuss the way in which each jurisdiction uses the presumption to tilt the inquiry toward a finding of preemption. That Part will also analyze the presumption’s effect when the two jurisdictions are asked to determine whether federal regulatory inaction can impliedly preempt conflicting state laws.
  • preemption,
  • presumption against preemption,
  • statutory interpretation
Publication Date
January 12, 2015
Citation Information
Benjamin Walther. "Everything Is Presumed in Texas" ExpressO (2015)
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