The Law, Economics and Politics of Federal Preemption Jurisprudence
Posted: 23 Mar 1999
Abstract
Federal preemption case law under the Commerce Clause and Supremacy Clause has been marked by a high degree of conflict and controversy. That is not surprising given the unusual ideological and political conflicts these cases pose. After describing this jurisprudence, we analyze a group of more than one hundred federal preemption decisions in the federal courts. All involve the exercise of state or local police power in the form of environmental, health and safety regulation, and the cases cover a period from the late 1960s to the present. We employ both statistical analyses and more traditional methods to try to discern some patterns in these decisions. We conclude that several different components of ideology (including judges' policy preferences and philosophies of regulation) explain these decisions, as do a variety of case-specific factors. The analysis supports a circumscribed "legal realist" view of judging. It also implies that politics plays a central role in the resolution of preemption conflicts, despite preemption doctrine's stated preference for market solutions to "externality" problems. Consciously or not, judges have effectively ensured that certain kinds of political distortions of the market for externalities survive, while others fail.
JEL Classification: H41, H77, Q28
Suggested Citation: Suggested Citation