The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace

In this Article, Professor Drummonds examines the division of workplace regulatory authority between the states and the federal government. The Article first explores the decline of the New Deal system of collective bargaining and reviews the debates ignited by this decline. It then reviews the role of state law in regulating the workplace, and illustrates the complex relationship between federal and state law in the workplace by examining reductions in coverage for AIDS in employer-provided group medical plans. The Article sets forth a framework and theory for deciding federal-state authority issues.

It analyzes traditional preemption doctrine and recent Supreme Court decisions outside of labor and employment law, and then applies these lessons to preemption doctrine in employment law, urging congressional revision of ERISA's preemption provisions, and judicial abrogation of current Federal Arbitration Act preemption doctrine. The Article concludes by recommending major revisions in the primary preemption doctrines that evolved out of the New Deal-era statutes concerning unionized employees.