Abstract
Again, the study presented here yields two core findings. First, although many issues seem to have become ideological battlegrounds in the circuit courts, federal preemption is not one of them. One could certainly imagine a different state of affairs. Given the significance of preemption, both in terms of constitutional principles and practical consequences, it would be understandable if preemption were a source of substantial friction between Republicans and Democrats. But it is not. The accepted sources of legal authority, or perhaps the norms of consensus and collegiality on the courts of appeals, have largely controlled judges’ decisions. Second, to the extent the issue of preemption does carry a partisan valence, that valence is one in which Republican judges tend to vote in favor of preemption and Democratic judges tend to vote against it. This might be because, within the Republican Party, those who care deeply about reducing economic regulation have been more successful than conservatives of other stripes in shaping their party’s judicial nominations. Or it might be because those within the Democratic Party who are committed to preserving state-level regulation of private business activity (particularly through tort liability) have been successful in shaping their party’s judicial nominations. Or it might be a combination of these two factors—or some other phenomenon altogether. Regardless, in the few preemption cases where at least one judge dissented, Republican circuit judges were much more apt to vote in favor of preemption than Democrats.
Recommended Citation
Joondeph, Bradley W.
(2011)
"The Partisan Dimensions of Federal Preemption
in the United States Courts of Appeals,"
Utah Law Review: Vol. 2011:
No.
1, Article 9.
Available at:
https://dc.law.utah.edu/ulr/vol2011/iss1/9