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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, June 29, 2011 ::
    Back at the observation post

    I've been in San Francisco for The Ring, but time now to start catching up on those exciting end-of-year decisions. This year the Court didn't up-end the constitutional world (the New York legislature may have done, but I'll discuss that separately if at all), but it did issue some interesting opinions, notably several with splits that defy convention "liberal-conservative" nomenclature. That won't stop the media that need their law cut into small chewable pieces for them, but it's intersting for the rest of us.

    I'll start with AT&T Mobility v. Concepcion. This is a pre-emption case. I just happen to be (still) working on an article about pre-emption. Here's the thing about it: it's a very interesting issue that tends to yield very boring cases. This is because at its heart it's a constitutional issue (what is the boundary between federal and state power) and also an administrative issue with constitutional overlay (how far can agencies go in demanding pre-emptive effect for their regulations? what degree of deference should courts give to such assertions?). But the cases are boring because in them the Court implements -- very well, I'm afraid -- the canon of constitutional avoidance, and far prefers narrow statutory decisions to constitutional ones.

    Of course, so do counsel: it's not good practice to push the Court toward a broad constitutional holding when a narrow statutory one will serve your client. And I would reject with both hands the notion that it's any part of the Court's job to entertain me. (I have opera for that.)

    But the fact remains that those of us who insist, who knows why, in being interested in federal pre-emption must plough through the AT&T v. Concepcions of this world. Even if we knew little about arbitration beforehand (though come to think of it I did once write a speech on ADR for a Deputy Attorney General of the U.S.). At least Justice Scalia wrote it. More soon, though I can't promise I won't do some writing on the other blog first.

    :: David M. Wagner 7:28 PM [+] ::

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