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JUSTICE GINSBURGS
COMMON-LAW FEDERALISM

DAVID L. FRANKLIN*

Abstract: This article examines an often-overlooked facet of the federalism

debate in which Justice Ruth Bader Ginsburg has pursued a distinctive
approach: the role of the state-court common-law judge in our federal
system. In a series of majority and dissenting opinions, Justice Ginsburg has
made clear that she places an exceptionally high value on the capacity of
common-law judges to render justice and to provide effective remedies to
injured parties on a case-by-case basis. Although she acknowledges that
Congress has virtually unlimited power to supplant or override this
traditional judicial function, she insists upon a clear and unambiguous
statement of congressional intent before countenancing such a result. Justice
Ginsburgs vision of the common-law judge as a guarantor of individualized
justice informs and reflects her view of the law more generally. She draws a
relatively sharp divide between the realms of common law and positive law
and, more than any other justice on the current Court, conceptualizes
common-law regimes such as contract and tort as serving primarily remedial
rather than regulatory purposes.

INTRODUCTION
During Justice Ruth Bader Ginsburgs sixteen years on the Supreme
Court, no area of the Courts docket has been the focus of more contentious
debate, or the scene of more dramatic doctrinal change, than federalism.
Yet scholars have never identified a distinctively Ginsburgian approach to
federalism issues.1 This lacuna can be explained to a certain degree by the

* Associate Professor, DePaul University College of Law. Thanks to Kevin Stack for
helpful comments and to Marie Wade for excellent research assistance.
1. A few have tried. Especially intriguing is one scholars attempt to depict Justice
Ginsburgs views on the substance/procedure distinction in federal diversity cases, as well
as those of Justices Brandeis and Frankfurter, as outgrowths of traditional Jewish
localism. See Daniel R. Gordon, Revisiting Erie, Guaranty Trust, and Gasperini: The Role
of Jewish Social History in Fashioning Modern American Federalism, 26 SEATTLE U. L.
REV. 213, 214 (2002).

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fact that in the most prominent constitutional cases in this areathose

addressing the scope of Congresss power to regulate interstate commerce,2
impose mandates on state legislative or executive officials,3 enforce the
individual rights guaranteed by the Fourteenth Amendment,4 and abrogate
state sovereign immunity5Justice Ginsburg has chosen to remain largely
silent.6 To be sure, she has consistently voted to uphold the exercise of
federal power against constitutional challenge in such cases, but she has
generally signed on to opinions written by others, principally Justices
Stevens, Souter and Breyer, whose dissents in 54 decisions she has often
joined.7
This essay examines an often-overlooked facet of the federalism
debate in which Justice Ginsburg has in fact pursued a distinctive approach:
the role of the state-court common-law judge in our federal system. In a
series of majority and dissenting opinions, Justice Ginsburg has made clear
that she places an exceptionally high value on the capacity of common-law
judges to render justice and to provide effective remedies to injured parties
on a case-by-case basis. Although she acknowledges that Congress has
virtually unlimited power to supplant or override this traditional judicial
function, she insists upon a clear and unambiguous statement of
congressional intent before countenancing such a result. Justice Ginsburgs
vision of the common-law judge as a guarantor of individualized justice
informs and reflects her view of the law more generally. She draws a
relatively sharp divide between the realms of common law and positive law

2. See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Morrison, 529 U.S.
598 (2000); United States v. Lopez, 514 U.S. 549 (1995).
3. See, e.g., Reno v. Condon, 528 U.S. 141 (2000); Printz v. United States, 521 U.S.
898 (1997).
4. See, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997).
5. See, e.g., Nev. Dept of Human Res. v. Hibbs, 538 U.S. 721 (2003); Bd. of Trs. v.
Garrett, 531 U.S. 356 (2001); Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe of Fla.
v. Florida, 517 U.S. 44 (1996).
6. Thus, for example, in the ten representative cases concerning constitutional
federalism cited supra, notes 2-5, Justice Ginsburg did not write a single majority,
concurring, or dissenting opinion. By contrast, in those ten cases Justices Souter, Stevens,
and Breyer wrote a total of seven, six, and five opinions, respectively. This is not to suggest
that Justice Ginsburg never writes opinions in constitutional federalism casessee, e.g.,
Tennessee v. Lane, 541 U.S. 509, 535-38 (2004) (Ginsburg, J., concurring)only that it is
rare.
7. See, e.g., Garrett, 531 U.S. at 376-89 (Breyer, J., dissenting); Morrison, 529 U.S. at
628-55 (Souter, J., dissenting); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 92-99 (2000)
(Stevens, J., dissenting in part and concurring in part); Fla. Prepaid Postsecondary Educ.
Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 648-65 (1999) (Stevens, J., dissenting);
Alden, 527 U.S. at 760-814 (Souter, J., dissenting); Seminole Tribe, 517 U.S. at 100-85
(Souter, J., dissenting); Lopez, 514 U.S. at 615-31 (Breyer, J., dissenting).
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and, more than any other Justice on the current Court, conceptualizes
common-law regimes such as contract and tort as serving primarily
remedial rather than regulatory purposes.
This distinctive approach to federalism emerges periodically in
Justice Ginsburgs constitutional law opinions, such as those concerning
punitive damages and the regulation of judicial elections, but it is most
prominent in cases that turn on the interpretation of statutes and
regulationsin particular, cases involving federal preemption of state law.
Preemption cases have a lower profile than constitutional federalism cases;
they are not found in many first-year law school casebooks or on the front
pages of many daily newspapers. Yet as several commentators have noted,
it is these cases, and not the ones addressing the outer limits of Congresss
authority vis--vis the states, that play the largest practical role in
establishing the balance between federal and state power in the United
States.8 Because of Justice Ginsburgs appreciation for the capacity of the
common law to deliver customized justice, she has repeatedly emphasized
the need to preserve state common-law remedies against federal
preemption.
This essay explores Justice Ginsburgs vision of the common law by
examining several of her majority and dissenting opinions in cases
involving preemption. Because each preemption case tends to be shaped by
its own unique statutory or regulatory context, however, it may be helpful
to begin with a statistical overview in order to identify some overarching
patterns. During Justice Ginsburgs tenure as a Justice, the Court has
decided sixty-three cases that turned on the question whether federal law
preempted state or local law.9 Overall, in these cases, the Court determined
that federal law had preemptive effect 57% of the time.10 Of the justices
who served during this entire period, Justices Scalia and Kennedy were the
friendliest to preemption claims: Justice Scalia favored preemption 62% of

8. See, e.g., Bradley W. Joondeph, The Deregulatory Valence of Justice OConnors

Federalism, 44 HOUS. L. REV. 507, 521 (2007); Robert A. Schapiro, Toward a Theory of
Interactive Federalism, 91 IOWA L. REV. 243, 261 (2005); Ernest A. Young, The Rehnquist
Courts Two Federalisms, 83 TEX. L. REV. 1, 130-34 (2004).
9. A list of cases included in this data set is provided in Appendix A. Preemption cases
are defined as cases that present, as a dispositive issue, the question whether application of
state or local law is precluded by contrary or conflicting federal law apart from the federal
Constitution itself. The data set excludes cases involving the dormant Commerce Clause and
intergovernmental tax immunity but includes cases involving foreign affairs preemption.
10. The Court found preemption in thirty-six cases out of sixty-three. This figure
includes two cases in which some state-law claims were held preempted and others were
not. UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 364 (1999); Am. Airlines, Inc. v.
Wolens, 513 U.S. 219, 222 (1995). For purposes of computing percentages, these cases are
given a value of 0.5.
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the time and Justice Kennedy did so 60% of the time. By contrast, Justice
Stevens voted in favor of preemption only 45% of the time, the least often
of any justice during this period. When unanimous cases are removed from
the sample, the contrast intensifies: Justice Scalia voted for preemption in
71% of non-unanimous cases and Justice Kennedy in 63%, while Justice
Stevens voted for preemption in just 42% of such cases. The more recently
appointed conservative justices seem the most favorably inclined of all
towards preemption, though admittedly this conclusion is based on a
smaller sample of cases: Justice Alito has voted in favor of preemption
89% of the time (eight cases out of nine), and Chief Justice Roberts has
done so 83% of the time (ten cases out of twelve).

FEDERALISM THROUGH A COMMON-LAW LENS

At first glance these numbers paint a mysterious picture. After all, in
constitutional federalism cases, it is the Courts conservative justices who
have been the most likely to vote to invalidate assertions of federal power,
while the more liberal justices have been more likely to vote to uphold it.11
Yet the pattern in the preemption cases is the opposite: the conservative
justices have been more likely to vote to nullify state law, while the more
liberal justices have been more likely to vote to preserve it.12 The mystery
dissipates somewhat when we recall that most claims of preemption are
brought by corporations as a defense to state-law claims; the conservative
justices may simply be more strongly oriented toward protecting business
defendants than toward preserving federalism values in the abstract.13 More
specifically, many preemption claims in recent decades have been based on

11. See supra note 7.

12. See Appendix B. The only justice who breaks this pattern is Justice Thomas, who
has voted in favor of preemption far less often than his fellow conservatives on the Court
(thirty cases out of sixty-one, or 49% of the time). Id. Some of the statistical divergence
between Justice Thomas and the other conservative justices can be accounted for by his
numerous solo dissenting opinions expressing the view that the Federal Arbitration Act does
not apply in state court. See, e.g., Preston v. Ferrer, 128 S. Ct. 978, 989 (2008) (Thomas, J.,
dissenting); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449 (2006) (Thomas,
J., dissenting); Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 460 (2003) (Thomas, J.,
dissenting); Doctors Assoc., Inc. v. Casarotto, 517 U.S. 681, 689 (1996) (Thomas, J.,
dissenting); Allied-Bruce Terminix Cos., Inc., v. Dobson, 513 U.S. 265, 285-97 (1995)
(Thomas, J., dissenting). But in recent years Justice Thomas has also taken a general
position on implied preemption that is more protective of state law than that of his
conservative colleagues. See Wyeth v. Levine, 129 S. Ct. 1187, 1204-17 (2009) (Thomas, J.,
concurring in judgment); Bates v. Dow Agrosciences LLC, 544 U.S. 431, 459 (2005)
(Thomas, J., concurring in judgment in part and dissenting in part).
13. See, e.g., David L. Franklin, What Kind of Business-Friendly Court? Explaining the
Chamber of Commerces Success at the Roberts Court, SANTA CLARA L. REV. (forthcoming
2009).
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the proposition that federal law is broadly deregulatory or at least sets a

ceiling above which state regulation may not go.14 Arguments that sound in
deregulation may find a receptive audience among the conservative
justices.15
Where does Justice Ginsburg fit in this statistical survey of
preemption cases? In the sixty-three preemption cases that have been
decided during her tenure, Justice Ginsburg voted in favor of federal
preemption thirty times, or 48% of the time.16 This places her second only
to Justice Stevens in the frequency with which she has voted to preserve
state or local authority in preemption cases. As we shall see, Justice
Ginsburg is especially interested in preserving state law against preemption
when that law operates to provide compensation to injured parties within a
traditional common-law framework.
A 1995 majority opinion by Justice Ginsburg provides a useful
introduction to her general approach to preemption. In American Airlines v.
Wolens,17 participants in a frequent flyer program filed class actions in state
court alleging that an airline had violated a state consumer protection
statute and the state common law of contracts.18 Justice Ginsburg, writing
for the majority, held that the federal Airline Deregulation Act (ADA)
preempted the plaintiffs claims under the state statute but did not preempt
their common-law breach of contract claims.19 The ADA contains a fairly
standard preemption clause, which provides that a State . . . may not enact
or enforce a law, regulation, or other provision having the force and effect
of law related to a price, route, or service of an air carrier . . . .20 In a
previous case, the Court had held that the ADA preempted a set of Travel
Industry Enforcement Guidelines promulgated by the National Association
of Attorneys General (NAAG), largely because the guidelines purported to
regulate the advertising and marketing of airline fares, a goal that stood in
conflict with the ADAs deregulatory objectives.21 In Wolens, Justice

14. See Young, supra note 8, at 133 (Most preemption cases . . . involve claims by
business entities that rigorous regulation at the state level must give way to comparatively
less rigorous regulation at the national level.).
15. See Joondeph, supra note 8, at 540-41.
16. See Appendix B.
17. 513 U.S. 219 (1995).
18. Id. at 224-25.
19. See id. at 221-22. Six justices agreed that the contract claims were not preempted
(Justice OConnor, joined by Justice Thomas, dissented on this point), and seven justices
agreed that the statutory claims were not preempted (Justice Stevens dissented on this
point). Justice Scalia did not participate. See id. at 221.
20. 49 U.S.C. 41713(b)(1) (2000).
21. Wolens, 513 U.S. at 223-24 (citing Morales v. Trans World Airlines, Inc., 504 U.S.
374 (1992)).
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Ginsburg characterized the state consumer protection statute as regulatory

in nature.22 Like the NAAG guidelines at issue in the earlier case, the
statute serve[d] as a means to guide and police the marketing practices of
the airlines; [it did] not simply give effect to bargains offered by the
airlines and accepted by airline customers.23 It therefore interfered with
the deregulatory purpose of the federal statute and had to give way.
By contrast, Justice Ginsburg reasoned, the state common law of
contracts is not regulatory in nature: instead, the purpose of contract law is
to enforce the will of parties who voluntarily enter into agreements with
one another.24 The federal statute, though protective of airlines, was not
designed to shelter airlines from suits alleging no violation of state-
imposed obligations, but seeking recovery solely for the airlines alleged
breach of its own, self-imposed undertakings.25 In other words, it is not
inconsistent with deregulation for parties to be held to their bargains.
Indeed, observed Justice Ginsburg, quite the contrary is true, as the United
States argued as amicus curiae: deregulation entails reliance on efficient
markets, and efficient markets in turn rely on the legal system to provide
remedies for breaches of contract.26
On this point, Justice Ginsburgs opinion prompted a sharp retort
from Justice OConnor. The common law of contracts, Justice OConnor
argued at length in her partial dissent, is just as much law as a state statute
prohibiting consumer fraud, and should therefore be held preempted to the
extent it relate[s] to rates, routes or services of an air carrier.27 Contracts
may be private agreements, but they are only enforceable in state court
insofar as state public policy permits:
Contract law is a set of policy judgments concerning how to
decide the meaning of private agreements, which private
agreements should be legally enforceable, and what remedy to
afford for their breach. The Court fails to recognize that when a

22. Id. at 227 (The Act is prescriptive; it controls the primary conduct of those falling
within its governance.).
23. Id. at 228.
24. Id. at 229.
25. Id. at 228.
26. Id. at 230 (citing Brief for the United States as Amicus Curiae Supporting Reversal
at *41, Am. Airlines, Inc. v. Wolens, 513 U.S. 219 (1995) (No. 93-1286); Daniel Farber,
Contract Law and Modern Economic Theory, 78 NW. U. L. REV. 303, 315 (1983); RICHARD
POSNER, ECONOMIC ANALYSIS OF LAW 90-91 (4th ed. 1992)).
27. See Wolens, 513 U.S. at 238-50 (OConnor, J., concurring in part and dissenting in
part) (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992)).
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Stat[e] decides to force parties to comply with a contract, it does

so only because it is satisfied that state policy, as expressed in its
contract law, will be advanced by that decision.28
Justice OConnors partial dissent in Wolens quite self-consciously
drew upon the most basic insight of the legal realist movement: that
common-law judges make public policy in deciding cases no less than
legislators do in enacting laws. Indeed, it cited a famous 1933 article by the
pioneering realist Morris Cohen in support of the proposition that the
enforcement of contracts is always a matter of public policy and never
merely a matter of effectuating the will of the parties.29
It is unsurprising that Justice Ginsburg did not directly respond to this
broad-based challenge from Justice OConnor; she could scarcely deny the
basic insight that each states contract law embodies its public policy. For
Justice Ginsburg, though, what really matters about contract lawand
about the common law generallyis not its overall regulatory force but its
ability to deliver justice in individual cases. From this perspective, we
might say that Justice Ginsburg did answer Justice OConnors challenge in
Wolens, albeit obliquely, by citing one of her favorite quotations from
another towering figure of the legal realist movement, Roscoe Pound, who
wrote that common-law principles are rarely determined on the basis of
one or two cases, but require a closer working out.30 In the immediate
context of the case, the quotation aimed to explain the Courts reappraisal
of its own earlier decision concerning the ADA and the NAAG guidelines,
but in a broader sense it reflects Justice Ginsburgs faith in the ability of
common-law judges to reach fair results, case by case.
The same faith in the good sense of common-law judges animates
Justice Ginsburgs opinion for the Court in the fiendishly complex case of
Gasperini v. Center for Humanities, Inc.31 Gasperini could be described as
a reverse-preemption case because it presented questions under the Erie
doctrine, which requires federal courts to apply substantive state law in
cases arising under diversity jurisdiction.32 The question in Gasperini was
whether federal courts in diversity cases could apply a New York statute
empowering appellate judges to review jury verdicts for excessiveness.33
Justice Ginsburgs answer to this question may at first appear peculiar.

28. Id. at 247-48.

29. Id. at 247 (citing Morris Cohen, The Basis of Contract, 46 HARV. L. REV. 553, 562
(1933)).
30. Id. at 234-35 (quoting Roscoe Pound, Survey of the Conference Problems, 14 U.
CIN. L. REV. 324, 339 (1940) (Conference on the Status of the Rule of Judicial Precedent)).
31. 518 U.S. 415 (1996).
32. See id. at 426; Erie R.R. Co. v. Tompkins, 304 U.S. 64, 77-80 (1938).
33. Gasperini, 518 U.S. at 418 (citing N.Y. C.P.L.R. 5501(c) (Mckinney 1995)).
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Although the state statute was framed as a directive to appellate courts, she
held that it must be applied by federal trial courts sitting in diversity;
federal appellate courts, on the other hand, should continue their practice of
using the abuse of discretion test as the standard of review for
excessiveness claims.34
When we unpack the decision a bit, its logic becomes clearerand
once again reflects Justice Ginsburgs general outlook on the common law.
First, the New York statute, while explicitly addressed to appellate courts,
had been construed by state courts as applicable at the trial stage as well.35
Second, the purpose of the statute was clearly substantiveto foster
predictability and rein in outlandish jury awards as part of a comprehensive
tort reform effortso under Erie, it applies in federal diversity cases.36
And third, the use of the aggressive New York standard of review by
federal appellate courts would violate the spirit, if not the letter, of the
Seventh Amendments command that no fact tried by a jury, shall be
otherwise re-examined in any Court of the United States, than according to
the rules of the common law.37 By the end of the Courts delicate
balancing act, it becomes apparent that the player in whom Justice
Ginsburg reposes the greatest trust is neither the jury (whose awards can be
reviewed for excessiveness) nor the federal appellate judge (whose long-
distance monitoring function is circumscribed by the Seventh Amendment)
but the trial judge, whose ability to ensure uniformity and reasonableness
on a case-by-case basis remains unchecked.38
Justice Ginsburgs interest in preserving an autonomous realm of state
common law comes across as well in her opinion for the Court in Empire
Healthchoice Assurance, Inc. v. McVeigh,39 in which she concluded that a
health insurance carriers claim for reimbursement arose under state
common law and thus afforded no occasion for federal court jurisdiction
even though, as the dissent put it, the contract set[] forth the details of a
federal health insurance program created by federal statute and covering 8
million federal employees.40 These federal ingredients, wrote Justice

34. Id. at 426-39.

35. Id. at 425.
36. See id. at 429-31.
37. U.S. CONST. amend. VII; Gasperini, 518 U.S. at 432-39.
38. This is consistent with her dissents from the Courts decisions placing constitutional
limits on punitive damages, in which she has expressed confidence in the ability of state
court judges to restrain runaway damage awards as a matter of state law. See, e.g., BMW of
North America, Inc. v. Gore, 517 U.S. 559, 610-11 (1996) (Ginsburg, J., dissenting); Honda
Motor Co. v. Oberg, 512 U.S. 415, 445-46 (1994) (Ginsburg, J., dissenting).
39. 547 U.S. 677 (2006).
40. Id. at 702 (Breyer, J., dissenting).
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Ginsburg, were not enough: contract claims are contract claims, and are
governed by state law unless Congress has clearly evinced a contrary
intent.41 Precedents recognizing federal common law ought to be
narrowly confined to the interstitial contexts in which they arose.42 If proof
were needed that cases involving preemption and the proper scope of state
and federal common law cut across ideological divisions, it can be found in
the roster of dissenters in Empire Healthchoice: Justices Breyers dissent
was joined by Justices Kennedy, Souter, and Alito.
Once Justice Ginsburg is satisfied that the state law at issue is
designed to ensure fair compensation to injured parties, she requires an
exceptionally clear statement of federal law to overcome its application.
Her dissent in American Insurance Association v. Garamendi,43 although
not involving state common-law judges, illustrates this approach well. In
Garamendi, the Court held that Californias Holocaust Victim Insurance
Relief Act (HVIRA), which required insurance companies doing business
in California to disclose information about any policies they sold in Europe
during the Holocaust era, was preempted by the Presidents conduct of
foreign affairs. American state insurance commissioners, together with the
State of Israel, Jewish and Holocaust survivor organizations, and several
European insurers, had formed the International Commission on Holocaust
Era Insurance Claims (ICHEIC), and the United States had entered into or
was negotiating pacts with several nations, agreeing to use the ICHEIC
process to handle claims by American citizens.44 Justice Souters majority
opinion concluded that Californias enforcement of HVIRA would interfere
with the Presidents chosen course of foreign policy on the subject of
Holocaust insurance reparations, which has been to encourage European
governments and companies to volunteer settlement funds in preference to
litigation or coercive sanctions.45
Justice Ginsburgs dissent for four justices in Garamendi took a very
different view of the purpose and effect of HVIRA.46 In her view, the
California statute had the immediate aim of enhancing disclosure of
historical information about insurance policiesinformation that could,

41. See id. at 693-94 (majority opinion); see also id. at 696 ([T]he reimbursement right
in question . . . is not a prescription of federal law.).
42. See id. at 690-92 (distinguishing Boyle v. United Technologies Corp., 487 U.S. 500
(1988) and Clearfield Trust Co. v. United States, 318 U.S. 363 (1943)).
43. 539 U.S. 396 (2003).
44. Id. at 406-08.
45. Id. at 421.
46. See id. at 430-43 (Ginsburg, J., dissenting). As in Empire Healthchoice, the
dissenters in Garamendi were ideologically homogeneous: Justices Ginsburg, Stevens,
Scalia, and Thomas.
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for example, reveal to a Holocaust survivor residing in California the

existence of a viable claim, which she could then present to ICHEIC for
resolution.47 This objective did not seem inconsistent with United States
foreign policy; indeed, ICHEIC itself had encouraged its participating
insurers to disclose information about their unpaid Holocaust-era policies,
though Justice Ginsburg notes that this project had thus far met with little
success.48 The ultimate goal of HVIRA, of course, was to facilitate
compensation for victims of the Holocaust and their survivors. If the
international agreements entered into by the Executive Branch had
expressly provided that private claims were extinguished or assigned to the
federal government, as past executive agreements had done,49 then Justice
Ginsburg would be prepared to agree that state laws enacted to expedite
compensation were preempted. But the relevant executive agreements in
Garamendi contained no express reference to compensation, nor even any
reference to disclosure. In such circumstances, she concluded, state law
should be allowed to stand.50
When we move from contract cases to tort cases, Justice Ginsburgs
determination to preserve common-law remedies against preemption
becomes even more pronounced. In Norfolk Southern Railway Co. v.
Shanklin,51 she dissented from the Courts decision that regulations issued
by the Federal Highway Administration (FHWA) concerning the
adequacy of warning devices installed using federal funds precluded a state
wrongful death action against a railroad for failure to maintain adequate
warning devices at one of its crossings. In her dissent, which was joined by
Justice Stevens, Justice Ginsburg noted that the relevant federal statute
aimed to ensure that States would, [a]t a minimum, . . . provide signs for
all railway-highway crossings52 and that the FHWA regulations were at
best unclear.53 She therefore argued that federal law was best interpreted as
establishing a floor, not a ceiling, for the adequacy of warning devices.
Given that no authority, federal or state, had determined that the particular
crossing at which the decedent was killed was equipped with adequate
warning devices, the plaintiffs wrongful death action should be permitted
to go forward. . . . Converting the railroads use of federal funds into a

47. Id. at 434.

48. Id. at 433.
49. See Garamendi, 539 U.S. at 436-38 (Ginsburg, J., dissenting) (describing Dames &
Moore v. Regan, 453 U.S. 654 (1981), United States v. Pink, 315 U.S. 203 (1942), and
United States v. Belmont, 301 U.S. 324 (1937)).
50. See id. at 441.
51. 529 U.S. 344 (2000).
52. Id. at 360 (Ginsburg, J., dissenting) (quoting 23 U.S.C. 130(d) (2006)).
53. See id. at 361.
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blanket immunity against state tort liability was, in Justice Ginsburgs

view, both illogical and unfair: The upshot of the Courts decision is that
state negligence law is displaced with no substantive federal standard of
conduct to fill the void. That outcome defies common sense and sound
policy.54 Once again, her paramount concern was to preserve the ability of
common-law courts to provide compensation in discrete cases.
Justice Ginsburgs unique appreciation for state common-law
adjudication comes across most clearly in her dissent in the recent case of
Riegel v. Medtronic, Inc.55 In Riegel, the Court held by an 8-1 vote that
premarket approval of a medical device by the Food and Drug
Administration (FDA) under the Medical Device Amendments of 1976
(MDA)56 preempts state common-law actions alleging that the device
was defectively designed, labeled, or manufactured.57 Justice Scalias
majority opinion was guided by two presuppositions: first, that tort law is
best viewed as a mode of safety regulation; and second, that it is an
inefficient and counterproductive mode of safety regulation. Hence the
Riegel Courts assertion that enforcement of state tort law would disrupt the
FDAs objectives by rendering medical devices safer, but hence less
effective.58 The Court reasoned that tort law is inferior to state statutes or
state agency rules because the latter
could at least be expected to apply cost-benefit analysis similar
to that applied by the experts at the FDA: How many more lives
will be saved by a device which, along with its greater
effectiveness, brings a greater risk of harm? A jury, on the other
hand, sees only the cost of a more dangerous design, and is not
concerned with its benefits; the patients who reaped those
benefits are not represented in court.59
Thus, the Court had little difficulty concluding that solicitude for
those injured by FDA-approved devices . . . was overcome in Congresss
estimation by solicitude for those who would suffer without new medical
devices if juries were allowed to apply the tort law of 50 States to all
innovations.60

54. Id. at 360.

55. 128 S. Ct. 999 (2008).
56. 21 U.S.C. 360k(a) (2006).
57. Riegel, 128 S. Ct. at 1006.
58. Id. at 1008.
59. Id.
60. Id. at 1009.
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762 NEW ENGLAND LAW REVIEW [Vol. 43:751

Justice Ginsburg, alone among the justices, took a different view. For
her, federal regulation of medical devices and state-law tort actions can
comfortably coexist because each pursues a different objective. The federal
objective, as Congress expressly stated in the preamble to the MDA, was
to provide for the safety and effectiveness of medical devices intended for
human use.61 More specifically, Justice Ginsburg argued, Congresss
purpose in enacting the MDAs express preemption provision was to
forestall legislative and regulatory efforts then underway in the states, and
in California in particular, to impose their own systems of premarket
approval for medical devices.62 She found no evidence that Congress
intended its new framework of FDA regulation to displace state-law tort
actions brought by consumers who were injured by devices that had been
approved by the FDA but were nonetheless unsafe.63 Congresss silence
with respect to state common-law tort actions, concluded Justice Ginsburg,
should not be read to preempt those actions, in light of three factors: first,
the traditional presumption against preemption, which she described as
having special force in fields of traditional state regulation;64 second, the
fact that Congress had made no reference in the MDA to high-profile
medical device lawsuits that were ongoing at the time, such as the Dalkon
shield litigation;65 and third and most important, the fact that preemption
would leave large numbers of consumers without any judicial remedy, in
contravention of Congresss clear intent to enhance consumer protection.66
Riegel is significant in part because it constitutes the Courts latest
word on the purposes of state tort law. Historically, the Courts preemption
decisions have focused on ascertaining the purposes of the purportedly
preemptive federal law.67 Because of this focusand because the Court
has no jurisdiction to authoritatively interpret state lawit has paid far less
attention to determining the purposes of state law in preemption cases.
Nevertheless, some such determination, however crude, is often an
essential ingredient in deciding whether state law falls within the scope of
an express federal preemption provision or stands as an obstacle to
achieving federal objectives. The Court has not taken a consistent position

61. Id. at 1014 (Ginsburg, J., dissenting) (citing 90 Stat. 539 (preamble)).
62. Id. at 1013.
63. Riegel, 128 S. Ct. at 1014-16.
64. Id. at 1013 (quoting N.Y. State Conference of Blue Cross & Blue Shield Plans v.
Travelers Ins. Co., 514 U.S. 645, 655 (1995)).
65. Id. at 1014-15 & nn.5-7.
66. Id. at 1015-16.
67. See, e.g., Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (Our inquiry into
the scope of a statutes pre-emptive effect is guided by the rule that the purpose of Congress
is the ultimate touchstone in every pre-emption case.) (citation and internal quotation
marks omitted).
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in preemption cases on how to weigh the regulatory purposes of state law

against its remedial purposes.68 On the one hand, for example, the Court
stated in an oft-cited passage from a 1959 labor relations case that
regulation can be as effectively exerted through an award of damages as
through some form of preventive relief. The obligation to pay
compensation can be, indeed is designed to be, a potent method of
governing conduct and controlling policy.69 (Not surprisingly, the state
law at issue in that case was held to be preempted.) On the other hand, in a
1988 case involving workers compensation at a federally owned facility,
the Court reasoned that although state compensation laws may have
incidental regulatory effects, Congress may reasonably determine that
incidental regulatory pressure is acceptable, whereas direct regulatory
authority is not.70 (Not surprisingly, the state law at issue in that case was
held not to be preempted.) More recently, the justices have disagreed about
whether state common law causes of action ought to be considered
requirements of state law subject to preemption under express federal
preemption provisions using that term.71
Justice Ginsburgs dissent in Riegel, like most preemption opinions,
focuses on construing relevant federal law, but at bottom it rests on an
implicit understanding of the predominant purpose of state common-law
tort actions: to compensate wrongfully injured parties. This deeply
traditional vision of tort law, grounded in notions of corrective justice, has
ancient roots stretching back to Aristotle.72 Twentieth-century jurists
augmented this traditional vision by arguing that when claims of strict
liability are involved, as in the medical device litigation in Riegel, the goal
of compensating injured plaintiffs is supplemented by the goal of spreading
unavoidable losses as broadly as possible.73 In recent decades, however,

68. On this subject, see generally Brian Wolfman, Why Preemption Proponents Are
Wrong, 43 TRIAL 20 (Mar. 2007), available at http://www.citizen.org/documents
/preemptiontrialarticle.pdf (emphasizing compensatory purpose of state law).
69. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959).
70. Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185-86 (1988) (footnote omitted).
71. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 486-89 (1996) (plurality opinion of
Stevens, J.) (common-law causes of action are generally not requirements within meaning
of federal statute); id. at 504-05 (Breyer, J., concurring) (common-law causes of action can
be requirements); id. at 510 (OConnor, J., concurring in part and dissenting in part)
(common-law causes of action are requirements).
72. See, e.g., Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO.
L.J. 695, 695 (2003) (describing corrective justice as based on the principle that when one
person has been wrongfully injured by another, the injurer must make the injured party
whole) (footnote omitted); JULES COLEMAN, RISKS AND WRONGS 374 (1992); ERNEST J.
WEINRIB, THE IDEA OF PRIVATE LAW 143 (1995).
73. See, e.g., Escola v. Coca-Cola Bottling Co. of Fresno, 150 P.2d 436, 440-41 (Cal.
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764 NEW ENGLAND LAW REVIEW [Vol. 43:751

both of these compensation-driven schools of thought have been challenged

by economically minded theorists who argue that the primary function of
tort law is to deter accidents and minimize the costs they impose on
society.74 The eight-justice majority in Riegel implicitly adopts this
regulatory vision of tort law, leaving Justice Ginsburgthe only former
plaintiffs lawyer on the Courtas the sole proponent of the remedial
vision.
Riegel teaches one more lesson that is relevant to this essay: Justice
Ginsburgs approach to federalism is not identical to that of Justice
Stevens. Undoubtedly, Justice Stevens is the justice whose perspective on
federalism most closely parallels Justice Ginsburgs. The two have voted
together, for example, in 84% of the Courts preemption cases,75 and
Justice Stevenss respect for the autonomy of state judges has been
noted.76 Yet Justice Ginsburg has parted company with Justice Stevens by
dissenting from several decisions, including some written by Justice
Stevens, imposing federal constitutional limits on the amount of punitive
damages that can be awarded in state court.77 And there are subtle but
important differences between their respective approaches to preemption.
On the one hand, Justice Ginsburg is somewhat less reluctant to conclude
that federal law has preemptive effect in areas where federal regulation is

1944) (Traynor, J., concurring).

74. See, e.g., GUIDO CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC
ANALYSIS 26 (1970) ([T]he principal function of accident law is to reduce the sum of the
costs of accidents and the costs of avoiding accidents.); WILLIAM M. LANDES & RICHARD
A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 4 (1987). I do not mean to suggest that
economics-minded tort law theorists reject strict liability. On the contrary, many embrace it
but they do so on the basis of a regulatory vision of tort law. See, e.g., Steven Shavell, Strict
Liability Versus Negligence, 9 J. LEGAL STUD. 1 (1980) (using mathematical models to show
that strict liability is a more efficient form of liability than negligence); Richard A. Epstein,
A Theory of Strict Liability, 2 J. LEGAL STUD. 151 (1973) (arguing that strict liability is more
economical and fair than negligence as a liability standard).
75. See Appendix A.
76. Thomas H. Lee, Countermajoritarian Federalism, 74 FORDHAM L. REV. 2123, 2123
(2005-2006); see also generally William D. Popkin, A Common Law Lawyer on the
Supreme Court: The Opinions of Justice Stevens, 1989 DUKE L.J. 1087.
77. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 430-39 (2003)
(Ginsburg, J., dissenting); BMW of N. Am. v. Gore, 517 U.S. 559, 607-14 (1996)
(Ginsburg, J., dissenting); Honda Motor Co. v. Oberg, 512 U.S. 415, 436-51 (1994)
(Ginsburg, J., dissenting). The two justices have also differed in cases involving federal
court review of damage awards for excessiveness. See Cooper Indus., Inc. v. Leatherman
Tool Group, Inc., 532 U.S. 434 (2001) (Stevens, J., writing for the majority); id. at 444-50
(Ginsburg, J., dissenting); Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (1996)
(Ginsburg, J., writing for the majority); id. at 439-48 (Stevens, J., dissenting).
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2009] GINSBURGS COMMON-LAW FEDERALISM 765

longstanding and pervasive.78 On the other hand, Justice Stevens is more

willing to hold that state common law can be subject to express
preemption.
The latter difference can be seen in Justice Stevenss separate
concurrence in Riegel. He agreed with Justice Ginsburg regarding the
history and purpose of the MDA,79 and pointedly distanced himself from
the majoritys contention that exposure to tort liability would make medical
devices less safe.80 In addition, he expressed the view that jury verdicts can
never constitute legal requirements even though they may motivate
changes in behavior on the part of actual or potential defendants.81 But, in
contrast to Justice Ginsburg, he concluded that common-law rules
administered by judges, like statutes and regulations, create and define
legal obligations, some of them unquestionably qualify[ing] as
requirements82 subject to preemption under the MDA. This view does
not generally lead to any divergence between the two justices in implied
preemption casesJustice Ginsburg joined Justice Stevenss majority
opinion in the important recent case of Wyeth v. Levine,83 for examplebut
in express preemption cases it can make all the difference.

CONCLUSION
The mission of the judge, Justice Ginsburg has written, is to decide
individual cases and controversies on individual records, neutrally applying
legal principles, and, when necessary, standing up to what is generally
supreme in a democracy: the popular will.84 The business of common law
judging, in her view, is distinct from the business of crafting public policy:
Even when they develop common law or give concrete meaning to

78. Compare, e.g., Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1564 (2007)
(Ginsburg, J., writing for the majority) (holding that federal banking law preempts state
registration and inspection requirements), with id. at 1573 (Stevens, J., dissenting) (arguing
that Congress has not authorized an executive agency to preempt nondiscriminatory state
laws regulating the business activities or mortgage brokers and lenders), and AT&T Co. v.
Cent. Office Tel. Co., 524 U.S. 214, 226-28 (1998) (holding that federal
telecommunications law preempts state claim of tortious interference with contract), with id.
at 231-35 (Stevens, J., dissenting) (I think it clear that a portion of the tort claim is not pre-
empted.).
79. See Riegel v. Medtronic, Inc., 128 S. Ct. 999, 1011-12 (Stevens, J., concurring in
part and concurring in the judgment).
80. Id. at 1012 (That is a policy argument advanced by the Court, not by Congress.).
81. Id. at 1012 n.1.
82. Id. at 1012.
83. No. 06-1249, 2009 WL 529172 (U.S. Mar. 4, 2009).
84. Republican Party of Minn. v. White, 536 U.S. 765, 804 (2002) (Ginsburg, J.,
dissenting) (citations and internal punctuation omitted).
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766 NEW ENGLAND LAW REVIEW [Vol. 43:751

constitutional text, judges act only in the context of individual cases, the
outcome of which cannot depend on the will of the public.85 Justice
Ginsburgs enduring contribution to the jurisprudence of federalism lies in
her respect for the remedial role of common law courts, and she has
expressed that respect in the most fitting way possible: not through broad
pronouncements or grand theories, but quietly, steadily, case by case.

85. Id. at 806 (Ginsburg, J., dissenting).

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2009] GINSBURGS COMMON-LAW FEDERALISM 767

APPENDIX A: PREEMPTION CASES DECIDED BY THE SUPREME COURT

OF THE UNITED STATES DURING JUSTICE GINSBURGS TENURE

Wyeth v. Levine, No. 06-1249, 2009 WL 529172 (U.S. Mar. 4, 2009)

Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008)
Chamber of Commerce of U.S. v. Brown, 128 S. Ct. 2408 (2008)
Medellin v. Texas, 128 S. Ct. 1346 (2008)
Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008)
Rowe v. N.H. Motor Transp. Assn, 128 S. Ct. 989 (2008)
Preston v. Ferrer, 128 S. Ct. 978 (2008)
Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559 (2007)
Ark. Dept of Health & Human Serv. v. Ahlborn, 547 U.S. 268 (2006)
Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71 (2006)
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006)
Gonzales v. Oregon, 546 U.S. 243 (2006)
Mid-Con Freight Sys., Inc. v. Mich. Pub. Serv. Commn, 545 U.S. 440
(2005)
Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005)
Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14 (2004)
Aetna Health Inc. v. Davila, 542 U.S. 200 (2004)
Engine Mfr. Assn v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246
(2004)
Nixon v. Mo. Mun. League, 541 U.S. 125 (2004)
Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003)
Am. Ins. Assn v. Garamendi, 539 U.S. 396 (2003)
Entergy La., Inc. v. La. Pub. Serv. Commn, 539 U.S. 39 (2003)
Beneficial Natl Bank v. Anderson, 539 U.S. 1 (2003)
Ky. Assn of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003)
Sprietsma v. Mercury Marine, 537 U.S. 51 (2002)
City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424
(2002)
Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002)
New York v. Fed. Energy Regulatory Commn, 535 U.S. 1 (2002)
Wis. Dept of Health & Family Serv. v. Blumer, 534 U.S. 473 (2002)
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001)
Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 (2001)
Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)
Buckman Co. v. Plaintiffs Legal Comm., 531 U.S. 341 (2001)
Crosby v. Natl Foreign Trade Council, 530 U.S. 363 (2000)
Pegram v. Herdrich, 530 U.S. 211 (2000)
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768 NEW ENGLAND LAW REVIEW [Vol. 43:751

Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000)

Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344 (2000)
United States v. Locke, 529 U.S. 89 (2000)
UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358 (1999)
El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999)
AT&T Co. v. Cent. Office Tel., Inc., 524 U.S. 214 (1998)
Foster v. Love, 522 U.S. 67 (1997)
Boggs v. Boggs, 520 U.S. 833 (1997)
De Buono v. NYSA-ILA Med. & Clinical Serv. Fund, 520 U.S. 806 (1997)
Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A.,
519 U.S. 316 (1997)
Atherton v. FDIC, 519 U.S. 213 (1997)
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)
Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996)
Doctors Assoc., Inc. v. Casarotto, 517 U.S. 681 (1996)
Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25 (1996)
Yamaha Motor Group v. Calhoun, 516 U.S. 199 (1996)
N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins.
Co., 514 U.S. 645 (1995)
Freightliner Corp. v. Myrick, 514 U.S. 280 (1995)
Anderson v. Edwards, 514 U.S. 143 (1995)
Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995)
Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265 (1995)
Am. Airlines, Inc. v. Wolens, 513 U.S. 219 (1995)
Neb. Dept of Revenue v. Loewenstein, 513 U.S. 123 (1994)
Haw. Airlines v. Norris, 512 U.S. 246 (1994)
Livadas v. Bradshaw, 512 U.S. 107 (1994)
OMelveny & Myers v. FDIC, 512 U.S. 79 (1994)
Dept of Taxation and Finance of N.Y. v. Milhelm Attea & Bros., Inc., 512
U.S. 61 (1994)
American Dredging Co. v. Miller, 510 U.S. 443 (1994)
John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86
(1993)
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2009] GINSBURGS COMMON-LAW FEDERALISM 769

APPENDIX B: VOTING PATTERNS IN PREEMPTION CASES DECIDED

BY THE SUPREME COURT OF THE UNITED STATES DURING
JUSTICE GINSBURGS TENURE