Kristen Blankley‘s recent Florida Law Review article on “Impact Preemption” is worth a read.  She goes one step beyond the by-now-well-trodden ground of critiquing the bases for recent Supreme Court arbitration jurisprudence on preemption.  Instead, tracing back to the Concepcion case, she suggests that the combination of recent Supreme Court cases has gone beyond field preemption to a status she describes as “impact preemption.”  In her words:

Impact preemption raises serious federalism issues because it does not require a conflict between federal and state law. Taken to its logical conclusion, the Court’s impact preemption analysis may prohibit states from regulating any aspect of arbitration that potentially “impacts” the arbitration process. This Article urges the Supreme Court to return to the classic roots of conflict preemption analysis under the FAA. A return to these conflict preemption principles would restore the balance of regulatory power between the states and the federal government, and  would restore a measure of predictability for consumers and contracting parties who use the national arbitration system to conduct commerce.