preemption cases excluded from Ringhand study?

[Lawrence Solum]

Mark's comments are very helpful.  What I have suggested on my blog is
that it would be useful to include alternative measures, e.g., with
and without federalism cases backed out.

At some point, federalism disputes need to be resolved by the courts.
When the states and Congress diagree about who has power and there are
conflicting legal norms that are asserted to apply to a dispute,
resolution requires some determination of which body has power.  Since
both state legislatures and Congress are elected bodies, deference to
democratic instiutions cannot resolve this dispute.  Given the
historical origins of the phrase "judicial activism," as wonderfully
detailed in Keenan Kmiec's piece in the California Law Review, the
inclusion of federalism cases as a measure of judicial activism is at
least problematic.  The right way to deal with this is to construct
alternative measures the acknowledge the theoretical debate over the
meaning of "judicial activism."

MARK STEIN <markstein at prodigy.net> wrote:
> 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
> >
>
>


-- 
Lawrence Solum
John E. Cribbet Professor of Law & Professor of Philosophy
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