Academic Round-Up

Jody Freeman (Harvard Law School) and Adrian Vermeule (Harvard Law School) have posted “Massachusetts v. EPA: From Politics to Expertise” on SSRN, see here. Freeman and Vermeule advance a very interesting thesis about the holding in Massachusetts v. EPA: that the case is part of a broader concern by members of the majority that administrative expertise is becoming increasingly politicized, particularly under the Bush administration. Accordingly, they argue that MA v. EPA is not just another environmental case, but is instead best categorized with cases such as Gonzales v. Oregon and Hamdan v. Rumsfeld. Freeman and Vermeule see decisions such as MA v. EPA as attempts to protect administrative expertise from political interference. The paper also contains some interesting discussion about the impact of MA v. EPA on the Chevron doctrine, which would be interesting for administrative law experts. I am usually skeptical of one-size-fits-all theses for cases arising in diverse areas of the law, but Freeman and Vermeule do make a persuasive case.

Lee Strang (Michigan State University College of Law) and Bryce Poole (U.S. Air Force JAG) have posted “The Historical (In) Accuracy of Justice Brandeis’ Claim in Burnet v. Coronado Oil & Gas Co., that the Supreme Court’s Historical Practice was to Give Constitutional Precedent Less Deference than Statutory Precedent” on SSRN, see here. I always enjoy reading, and pointing out to SCOTUSblog readers, papers that challenge conventional wisdom, and Strang and Poole do a nice job of showing that the Court’s practice of giving less deference to constitutional precedents than to statutory precedents relies on an historical inaccuracy in Brandeis’s Burnet dissent. Brandeis’s articulation of that two-tiered formula for deference was flawed, according to the authors, because the Court traditionally looked to six other factors in determining whether to respect precedent and treated both constitutional and statutory precedents similarly in applying those factors. The authors also hypothesize, quite interestingly, that Brandeis’s flawed articulation of the two-tiered stare decisis formula fit neatly within his progressive ideals and thus made it easier for him (and others on the Court) to vote to implement a New Deal agenda by overturning precedents that were an obstacle to that agenda. Despite its (very) lengthy title, I highly recommend giving this article a read.

Catherine Sharkey (NYU School of Law) has posted “Federalism in Action: FDA Regulatory Preemption in State versus Federal Courts,” see here. Before discussing the specifics of this article, the issues analyzed in this article are undoubtedly hot: the Court is still considering Riegel v. Medtronic from its December sitting and there is a pending cert petition in Wyeth v. Levine, case number 06-1249, in which the Solicitor General just filed a brief at the invitation of the Court. In this Essay, Professor Sharkey explores how state and federal courts have reacted differently to the increasingly aggressive actions of federal regulatory agencies, particularly the FDA, in the preemption area. She also highlights how efforts have moved from the failed effort of implementing a regulatory compliance defense at the state level to the “blunter” instrument of federal preemption in recent years. For those interested in Riegel and Wyeth, this is an interesting article.