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But the commission's Democrats warned that the FCC, by exceeding its legal mandate, would face time-consuming challenges from opponents, including cable companies and local officials angered by what they say is a preemption of their authority.
This is a preemption case fed into a disconnection case.
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They argued that the companies' argument that the claims actually were governed by federal common law was a preemption defense that was insufficient as a basis for removal.
"It's a preemption bill that would not allow states to enact labeling of GE foods," explains Rebecca Spector, west coast director of the Center for Food Safety, which helped write the Vermont bill.
Were a preemption challenge to the poison pill to be brought now for the first time, they argue, courts would likely look to whether the pill permits "tender offerors … a meaningful opportunity to successfully acquire the target and whether shareholders are given an opportunity to evaluate the merits of tender offers". This test, they posit, the pill would fail.
That provision, the court observed, is "a limited preemption clause that the instant dispute does not trigger". Id., at 145.
Federal preemption is a doctrine about structure, not rights.
Preemption is a form of self-defense in the face of immediate danger.
Privacy advocates counter that the push for preemption is a cynical ploy to neuter stricter rules, such as those in the California Consumer Protection Act, signed into law last summer.
There is a vast literature on preemption involving a dizzying array of varied counterexamples and revised analyses.
This is a case of late preemption because the alternative process (Billy's throw) is cut short after the main process (Suzy's throw) has actually brought about the effect.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com