Vanderbilt Journal of Transnational Law


Harold G. Maier

First Page



During the past decade, there has been increasing attention on the part of legal scholars to the need for a clear statement outlining the divisions of state and federal power in this difficult area. In two important cases, the Supreme Court indicated renewed judicial interest in the problem. To date, however, the federal courts have not succeeded in establishing a uniform and workable guide by which the validity of state action may be judged in the absence of definitive federal policy. This deficiency has posed difficulties for state legislatures in arriving at law-making decisions and for the courts in testing the validity of the legislatures acts. There has been no effective articulation of a legal test to determine in what circumstances the exercise of state law-making power is foreclosed by the nature of the federal system itself, in the absence of a preemptive rule of decision promulgated at the national level. The remainder of this article reexamines the current tests applied to determine the scope of permissible state activity in cases of this kind, with particular emphasis upon the guides provided by the opinions in Zschernig v. Miller and Banco Nacional de Cuba v. Sabbatino, and suggests a functional approach designed to establish an effective guide to state action which gives proper emphasis to the requirements inherent in the structure of the federal system.