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Whose Ox is Being Gored? When Attitudinalism Meets Federalism


Michael C. Dorf


Cornell Law School

Spring 2006

Columbia Public Law Research Paper No. 06-102

Abstract:     
Empirical research indicates that factors such as an individual Justice's general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments - independent of whether the particular outcome in any given case is "liberal" or "conservative" - can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which "conservative" Justices voted to invalidate a strict federal drug provision in light of California's legalization of medical marijuana, and "liberal" Justices voted to uphold the federal law. Proponents of a strongly legal realist view of the Court might argue that views about federalism are themselves ideological, or that Justices who commit themselves to defending or opposing states' rights do so because of a calculation about the likely long-term consequences of such a position. But they do so only by draining the realist enterprise of its descriptive and normative power, because, as this Essay argues, genuine principles about federalism are distinctly legal, even if formed on the basis of long-term calculations about the likely effects of various views about federalism. Taking federalism as a point of departure, this Essay describes and justifies a method by which Justices choose the legal principles that bind them.

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Date posted: March 2, 2006  

Suggested Citation

Dorf, Michael C., Whose Ox is Being Gored? When Attitudinalism Meets Federalism (Spring 2006). Columbia Public Law Research Paper No. 06-102. Available at SSRN: http://ssrn.com/abstract=887744 or http://dx.doi.org/10.2139/ssrn.887744

Contact Information

Michael C. Dorf (Contact Author)
Cornell Law School ( email )
524 College Ave
Myron Taylor Hall
Ithaca, NY 14853
United States
HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=333
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