preemption cases excluded from Ringhand study?

[MARK STEIN]

As Larry says, if you are going to exclude cases in which some OTHER legislature could re-validate the Court-invalidated statute, you would have to exclude not only preemption cases, but also dormant Commerce Clause cases, 11th Amendment cases, and (I assume) dormant foreign policy-power cases (all of which are included in Lori's study).

In his Legal Theory blog, Larry has suggested that all these cases SHOULD be excluded.  I think they  should all be included.  The fact that some other legislature can re-validate an invalidated statute may make the Court's decision less undemocratic, but I think that is a separate issue.  

If we are going to exclude some cases because another legislature can re-validate the statute, why not exclude all cases because the Constitution can be amended to re-validate the statute?  The most objective and useful measure would be all invalidated statutes, in my opinion.

Anyway, Lori's exclusion of preemption cases certainly does show that her study was not motivated by liberal bias (in case anyone was under that misapprehension).

Mark



Lawrence Solum <lsolum at gmail.com> wrote: Just a minor note: In Dormant Commerce Clause cases, Congress has the
final word.  And in 11th Amendment cases, state legislators have the
final word.  In Congressional power cases, the Court has the final
word in the sense that state legislatures cannot override the Court's
decision except through constitutional amendment.

On 9/18/06, Ringhand, Lori  wrote:
> I excluded the preemption cases for the reason Ilya Somin and John Noble
> mention. Unlike in other invalidation cases, the Court in preemption
> cases is not claiming the final word on the issue. Because Congress can
> "overturn" these decisions by legislatively changing the relevant
> statute, they don't get at the same type of institutionally aggressive
> use of judicial power that other invalidations do.
>
> That said, I certainly agree that preemption cases form part of the
> larger picture of how the Court views its relationship with Congress,
> and I teach them as such in my con law class (along with clear statement
> rules).
>
> Lori Ringhand
> Associate Professor of Law
> University of Kentucky College of Law
>
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