Empowerment Through Restraint: Reverse Preemption Or Hybrid Lawmaking?(Law Review Symposium 2009‪)‬

ABSTRACT In the jurisprudence of federal jurisdiction, we often observe federal courts exerting power and control under the banner of restraint and deference to states and to other branches of the federal government. This Article explores two examples of this empowerment technique, in which the United States Supreme Court deployed federal judicial power to resolve choice of law questions. The examples come from diverse contexts: foreign affairs and bankruptcy. In both contexts, the Roberts Court acted in the name of respect for state prerogatives, but bestowed on itself and other federal judges considerable latitude to determine the outcome of suits.