53 Pages Posted: 13 Dec 2004 Last revised: 19 Feb 2013
Date Written: December 13, 2004
This article presents an empirical overview of the Rehnquist Court's record on preemption. We examine the universe of preemption cases decided by the Rehnquist Court, rather than merely a sample of landmark cases. In deciding preemption cases, we find that the Court is particularly sensitive to whether or not a state is a party to the case and whether or not the Solicitor General takes an anti-preemption position. Lastly we examine the individual justices' votes in preemption cases, finding no consistent voting blocs among the justices, nor do we find that any individual justice consistently fills the swing vote position in close cases.
Keywords: conservative, EPA, economic regulation, employment, environment, FDA, federal, federalism, health, liberal, Judicial Data Base, justices, labor, NHTSA, OSHA, public benefits, safety, signaling, state law, statutory, supreme, tax, taxation, Thomas Merrill, tort claims, transportation, voting blocs
JEL Classification: D78, H77, K40
Suggested Citation: Suggested Citation
Greve, Michael and Klick, Jonathan, Preemption in the Rehnquist Court: A Preliminary Empirical Assessment (December 13, 2004). Supreme Court Economic Review, Vol. 14, 2006, pp. 43-94; FSU College of Law, Public Law Research Paper No. 136; FSU College of Law, Law and Economics Paper No. 05-08; George Mason Law & Economics Research Paper No. 13-14. Available at SSRN: https://ssrn.com/abstract=634263 or http://dx.doi.org/10.2139/ssrn.634263