i think the fact that pre- emption cases are difficult because pre-emption -- because congressional intent is so hard to discern is that judges will make judgment calls. those are contemptible. the will and that this agreement. the court will be moved to disappear -- move to intervene and make a judgment call. how does one go about divining congressional intent? that is not easy to answer in the abstract and across the board. the same justices do with the question of congressional intent differently in different cases. i think two of the most important cases of the term illustrate this nicely -- waiting and conception. in writing, - whiting, the court said this arizona law which imposed sanctions on those who hire illegal immigrants, was not prohibited -- was not pre- emption of federal immigration law. in the majority opinion, chief justice rehnquist emphasized the preemption provision of the statute, specifically the reference to licensing and similar laws. it argued that arizona had enacted a licensing statute which fell within the scope of the savings clause. in dissent, justice prior

i think the fact that pre- emption cases are difficult because pre-emption -- because congressional intent is so hard to discern is that judges will make judgment calls. those are contempble. the will and that this agreement. the court will be moved to disappear -- move to intervene and make a judgment call. how does one go about divining congressional intent? that is not easy to answer in the abstract and across the board. the same justices do with the question of congressional intent differently in different cases. i think two of the most important cases of the term illustrate this nicely -- waiting and conception. in writing, - whiting, the court said this arizona law which imposed sanctions on those who hire illegal immigrants, was not prohibited -- was not pre- emption of federal immigration law. in the majority opinion, chief justice rehnquist emphasized the preemption provision of the statute, specifically the reference to licensing and similar laws. it argued that arizona had enacted a licensing statute which fell with the scope of the savings claus in dissent, justice prior -- bre

ok first, why are there so many pre-emption cases? what i'm willing to do is briefly summarize the subject matter of these cases. i think that will go a long way. bridging to illuminating why we have so many of them. -- two eliminating why we have so many of them. -- illuminating why we have so many of them. at&t mobility against conception, there, the question was whether the federal arbitration act pre-empted a rule of california contract law, a self discovery bankroll, which deemed class-action waivers and arbitration agreements unenforceable and certain aspects are met. the federal vaccine law, and whether it pre-empted claims against vaccine manufacturers. williamson against mazda motors concerns federal safety standards, and whether the permitted state suits against auto manufacturers. finally, the case that came down on thursday, concerned federal drug regulation, specifically related to generic drug manufacturers, and whether they preempt, alleging a failure to warn. these five cases together, what did they tell us about why t

-- a fairly described as a pro pre-emption court? if it is characterized that way, is there any reason to be concerned about this from a federalism perspective? >> first, why are there so many pre-emption cases? i am going to briefly summarize the subject matter of these cases. i think that will go a long way towards eliminating why we have so many of them. the chamber of commerce against ". the issue was whether an arizona law imposing licensing sanctions on employers is pre- empted by federal immigration law. at&t mobility against conception. the question is whether the federal arbitration act provide the to the rule of california contract law, the self discovery law, which deemed class action waivers unenforceable when certain criteria are met.

i have looked at the issues, i don't see an immediate issue here where there is a concern for pre-emption. i don't want to get into the specifics. as i said publicly, the states have a role here. the federal government has a role and, you know, i think we have taken our action with our license extension. the state has permanent action. those things are necessary for licensing. >> just to say it again, at this moment, you do not believe that the state -- that the n.r.c. should get involved in the legal dispute between the corporation and the state of vermont? am i hearing you say that n.r.c. should not be involved? >> i don't want to comment specifically on the matter before the commission because that is a privileged discussion but certainly i see nothing that would tell me there is a pre-emption issue here. >> ok. again, my getting back to commissioner magwood's very apt statement which i strongly agree with that the n.r.c. benefits. we all benefit from the open process. my understanding is that there was a vote yesterday at the n.r.c. on the issue, in fact, of whether or not the n.r.c.

and the pre-emption cases did not all fall in favor of the businesses who favor it. finally, a case that the chief justice wrote involving -- concluded quite clearly that corporations do not have a personal right of privacy in cases involving freedom of information act. if you like the flavor of roberts opinion, that is a good one to read. we have a lot to talk about this morning. we have some very good people appear who are primed to go with it. we had thought about adding to our agenda this morning some discussion of the health care litigation which is now working its way to through several circuits. we will defer that, not try to take that today. maybe the next panel that meets two years from now may have something of the supreme court to talk about by then. having left that off the table, there is still plenty to talk about. with those general fox to set the stage, we will proceed through major areas. we are not trying to do everything point we hope that what we do have to say will be of interest to you. we want to start out looking at some administrative law cas

on this critical question of pre-emption, i am understanding that, while my colleagues would favor a national standard, i would urge you to look very closely at some of the strong state measures that would be effectively over written if a week federal standard is established. those bills are important. even in a state like california, when they thought they had it right the first among financial data, they had to come back later and deal with medical bridge notification as well. thank you very much. >> thank you. as a student of john dingell, i will recognize myself for the first five minutes with a yes or no required at each of you. mr. goldman, if the existence of so many state standards -- is the existence of so many state measures an impediment to notification? >> yes. >> yes. >> yes. >> should not be. >> would a single federal standard lessen the risk of unnecessary notices sent every year? >> yes. >> yes. >> yes. .> no >> do you think consumers can be desensitized to risk if they receive thune notifications? >> yes. >> yes. >> yes. >>. >> even airing on the side of caution? >>

the pre-emption case is one at a commercial speech -- the commercial speech cases another. it takes a wholesale beer to be pro-business but the other side of the picture has to be considered cases like the employment discrimination cases where the court appears to have been favorable to employees challenging discrimination. saying that an oral complete would do. these were favorable to employees. by no means did all those fall in the favor of those businesses that seem to favor federal pre- emption of state law is the arizona immigration case. and is clearly an example that and there are others. finally a case that the chief justice wrote involving -- including corporations do not have a personal right of privacy. i think we have a lot to talk about this morning. we have some very good people appear who are trying to go with it. i might add we had thought about adding to our agenda this morning some discussion of the health care litigation which is working its way through several circuits including the fourth. we have decided we will defer that and try not to take them on t

. >> i certainly do not see an immediate issue where there is a concern for pre-emption. i do not want to get into the specifics of the legal question. as i have said publicly, the states have a role, the federal government has a role and we have taken our action, those things are necessary, so just -- >> at this moment, you do not believe the nrc should get involved? >> i do not want to comment specifically because it is a privilege discussion, but i've seen nothing that would show there is a pre-emption issue here. >> getting back to the statement, the nrc benefits and we all benefit from an open process -- maya understanding is there was a vote yesterday on the issue. on the issue of whether it the nrc should be involved in this case. can you tell me what the vote was? >> the matter in front of the commission was one of our legal discussions and we like to keep those closed because it preserves the opportunity for our legal counsel to give us a frank recommendation. the'm going to pick up on point of an open process. your job is to represent the interests of the people

i assume it will do pre-emption, offense/defense and as was just indicated, the policy within the context of the rules of war, what would constitute some type of attack. you are stepping in at a critical moment where we are just beginning to develop a strategy for new -- for a new dimension of warfare that we have not confronted yet and your leadership will be critical. >> there is no question that the whole arena of cyber attacks, developing technologies, in the information area, represents a potential battle front for the future. i have often said that there's a strong likelihood that the next pearl harbor that we confront could very well be a cyber attack that cripples our power system or our great, perhaps our security systems, our financial systems, our governmental systems. this is a real possibility in today's world. as a result, i think we have to aggressively be able to counter that. it will take both defensive measures as well as aggressive measures. most importantly, there has to be a comprehensive approach in government to make sure that those attacks don't take place. i have

i assume it will do pre-emption, offense/defense and as was just indicated, the policy within the context of the rules of war, what would constitute some type of attack. you are stepping in at a critical moment where we are just beginning to develop a strategy for new -- for a new dimension of warfare that we have not confronted yet and your leadership will be critical. >> there is no question that the whole arena of cyber attacks, developing technologies, in the information area, represents a potential battle front for the future. i have often said that there's a strong likelihood that the next pearl harbor that we confront could very well be a cyber attack that cripples our power system or our great, perhaps our security systems, our financial systems, our governmental systems. this is a real possibility in today's world. as a result, i think we have to aggressively be able to counter that. it will take both defensive measures as well as aggressive measures. most importantly, there has to be a comprehensive approach in government to make sure that those attacks don't take place. i have

i assume it will do pre-emption, offense/defense and as was just indicated, the policy within the context of the rules of war, what would constitute some type of attack. you are stepping in at a critical moment where we are just beginning to develop a strategy for new -- for a new dimension of warfare that we have not confronteyet and your leadership will be critical. >> there is no question that the whole arena of cyber attacks, developing technologies, in the information area, represents a potential battle front for the future. i have often said that there's a strong likelihood that the next pearl harbor that we confront could very well be a cyber attack that cripples our power system or our great, perhaps our security systems, our financial systems, our governmental systems. this is a real possibility in today's world. as a result, i think we have to aggressively be able to counter that. it will take both defensive measures as well as aggressive measures. most importantly, there has to be a comprehensive approach in government to make sure that those attacks don't take place. i have a

on this question of pre-emption, i understand 1 my colleagues would favor a national standards. it is sensible from their perspective but i would urge you to look very closely at some of these strong state measures that would be effectively over written if a weak federal standard is established. those bills are important and even in states like california where they thought they had it right the first time on financial data, they had to deal with medical breach notification as well. thank you. >> thank you and i apologize i did not pronounce your name correctly. mr. rotenberg. i will try this myself and recognize myself for the first five minutes with a yes or no required at of each of you and go down the line starting with mr. goldman and around and around. yes or no, mr. goldman, is the existence of so many state standards an impediment to fast consumer notification? >> yes. >> yes. >> yes. >> should not be. >> is preemption necessary to speed up consumer notification? >> yes. >> yes. >> no. >> what a single federal standard lessen the risk of over-notification and decrease th

i assume it will do pre-emption, offense/defense and as was just indicated, the policy within the context of the rules of war, what would constitute some type of attack. you are stepping in at a critical moment where we are just beginning to develop a strategy for new -- for a new dimension of warfare that we have not confronted yet and your leadership will be critical. >> there is no question that the whole arena of cyber attacks, developing technologies, in the information area, represents a potential battle front for the future. i have often said that there's a strong likelihood that the next pearl harbor that we confront could very well be a cyber attack that cripples our power system or our great, perhaps our security systems, our financial systems, our governmental systems. this is a real possibility in today's world. as a result, i think we have to aggressively be able to counter that. it will take both defensive measures as well as aggressive measures. most importantly, there has to be a comprehensive approach in government to make sure that those attacks don't take place. i have