preemption cases excluded from Ringhand study?

[michael curtis]

Yes.  And "conservatives" are far less devoted to federalism than the rhetoric would suggest--with the likely exception of Justice Thomas.  Preemption is a huge threat to the role of the states--since many state powers and policies (if not nearly all) are in the area of concurrent powers.  Most of the so called "conservative" justices interpret statutory plans that do not clearly call for preemption--and indeed seem to go the other way-- to require it, while the so called "liberal justices" (how absurd these terms are) go the other way.  The air bag case is a clear example.  There Thomas joins the "liberal" block and Breyer joints the "conservative."   Republicans and Democrats, progressives and those who wish to return to the golden Gilded Age are all inconsistent states' righters, as the fights over state efforts on global warming and pollution and tort protection attest.  Ernest Young has done important work on preemption.  At any rate, preemtion cases need to be included.  They are quite often a way of overturning state statutes in the absense of a clear federal mandate.  

Michael Curtis
  ----- Original Message ----- 
  From: MARK STEIN 
  To: lawcourts-l at usc.edu ; conlawprof at lists.ucla.edu 
  Sent: Saturday, September 16, 2006 9:50 PM
  Subject: preemption cases excluded from Ringhand study?



  Lori Ringhand's important and much-discussed study on judicial activism seems to exclude most or all preemption cases that are not also decided on some other basis (e.g., dormant commerce clause).  Should all statutory preemption cases have been included?  To hold that a state law is preempted is to hold that it is unconstitutional in violation of the Supremacy Clause.  If all preemption cases were included, the conservatives might be more activist in striking down state laws as well as federal laws.

  Mark



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