preemption cases excluded from Ringhand study?

michael curtis curtism at bellsouth.net
Sun Sep 17 16:11:34 PDT 2006


We have preemption in our con law text, Constitutional Law in Context (Prigg 
and Geier) and we teach it along with the dormant commerce clause.  For 
people who will practice law, preemption is of great importance.

Michael Curtis
----- Original Message ----- 
From: "Malla Pollack" <mpollack at ajsl.us>
To: <jfnbl at earthlink.com>; "MARK STEIN" <markstein at prodigy.net>; 
<lawcourts-l at usc.edu>; <conlawprof at lists.ucla.edu>
Sent: Sunday, September 17, 2006 11:50 AM
Subject: RE: preemption cases excluded from Ringhand study?


The Rehnquist court also found pre emption without express statutory
basis (in fact, despite broad savings clauses).  See e.g., Geier v
American Honda, 487 U.S. 500 (2000) (regulation allowing gradual phase
in off passive restraint systems held to pre empt state common law tort
claim); Boyle v. United Technologies, 487 US 500 (1988)(killing tort
claim by judicially creating government contractor defense which
Congress had refused to enact on several occasion).
While I do not have time now to engage in a discussion over the
relative purity of the Rehnquist Court's pre emption cases, I would
appreciate some feed back about how many other professors have added pre
emption to the Constitutional Law One syllabus.  I inserted it right
after the dormant commerce clause.

Malla Pollack
Professor, American Justice School of Law
mpollack at ajsl.us
270-744-3300 x 28
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
jfnbl at earthlink.com
Sent: Sunday, September 17, 2006 1:25 AM
To: MARK STEIN; lawcourts-l at usc.edu; conlawprof at lists.ucla.edu
Subject: Re: preemption cases excluded from Ringhand study?

I don't think the enforcement of an express statutory preemption can
be characterized as judicial activism except in an interpretation of
its scope that is overbroad. My sense is that narrowing the scope of
preemption is one of the fairly few distinct and significant
doctrinal retrenchments of the Rehnquist Court that have actually
reined in judicial policy-making. Silkwood, Cippolone, Medtronic,
Spreitsma, Bates. In the end, you have Thomas and Scalia, in partial
dissent, contending that the majority has gone overboard in applying
the presumption against preemption to arrive at an unduly narrow
construction of an express preemption.

John Noble

At 6:50 PM -0700 9/16/06, MARK STEIN wrote:
>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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