preemption cases excluded from Ringhand study?

[Frank Cross]

I agree with Larry's suggestion about reporting both results, but his 
conclusion seems a little strong.  At least if you don't reject a priori 
the "political safeguards of federalism" position.


At 06:49 PM 9/18/2006, Lawrence Solum wrote:
>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
>University of Illinois College of Law
>504 East Pennsylvania Avenue
>Champaign, IL  61820-6909
>217.244.3960
>lsolum at gmail.com
>
>http://lsolum.typepad.com/legaltheory/
>(blog)
>http://home.law.uiuc.edu/~lsolum/
>(personal home page)
>http://www.law.uiuc.edu/faculty/DirectoryResult.asp?Name=Solum,+Lawrence
>(homepage at the University of Illinois College of Law)
>http://www.phil.uiuc.edu/faculty/list/Solum/index.htm
>(homepage at the University of Illinois Department of Philosophy)
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**********************************************************

Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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