The Law, Economics and Politics of Federal Preemption Jurisprudence

Posted: 23 Mar 1999

See all articles by David B. Spence

David B. Spence

University of Texas at Austin – McCombs School of Business – Department of Business, Government & Society; University of Texas at Austin - School of Law; University of Texas at Austin - Kay Bailey Hutchison Center for Energy, Law & Business

Paula C. Murray

University of Texas at Austin - Department of Information, Risk and Operations Management

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

Spence, David B. and Spence, David B. and Murray, Paula C., The Law, Economics and Politics of Federal Preemption Jurisprudence. Available at SSRN: https://ssrn.com/abstract=151872

David B. Spence (Contact Author)

University of Texas at Austin – McCombs School of Business – Department of Business, Government & Society ( email )

2110 Speedway, B6000
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Austin, TX 78705
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HOME PAGE: https://law.utexas.edu/faculty/dspence/

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

University of Texas at Austin - Kay Bailey Hutchison Center for Energy, Law & Business ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

Paula C. Murray

University of Texas at Austin - Department of Information, Risk and Operations Management ( email )

CBA 5.202
Austin, TX 78712
United States
512-471-5259 (Phone)
512-471-0587 (Fax)

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