Academic Round-Up

In this week’s academic round-up, I would like to profile some articles from an online journal, the Northwestern University Law Review Colloquy, that has done a particularly good job of providing timely analysis of recent Supreme Court decisions. The Colloquy‘s focus on recent developments in the Supreme Court seems particularly well-suited to an online journal because the content is available very quickly and the articles for these journals tend to be relatively short. In any event, below are some recent articles in the Colloquy that are well worth reading:

Cathy Sharkey (New York University School of Law) has published a two-part essay entitled “What Riegel Portends for FDA Preemption of State Law Products Liability Claims,” see here and here. With the Wyeth v. Levine case looming for next Term, Professor Sharkey’s essay is particularly timely. In it, she urges the Court to consider the agency record in making decisions about implied conflict or obstacle preemption based on what she has previously termed the “agency reference model.” Of course, Riegel turned out to be an express preemption case, at least as the Court framed the issue. However, as Professor Sharkey notes, Wyeth is extremely likely to turn on implied preemption principles. Thus, her parsing of both the opinion and oral argument transcript in Riegel may provide a sneak preview as to how the Court may address the issues in Wyeth.

Glenn Reynolds (University of Tennessee College of Law) and Brannon Denning (Cumberland School of Law) have published an essay entitled “Heller‘s Future in the Lower Courts,” see here. Professors Reynolds and Denning provide a highly-readable account of the Court’s recent decision in Heller, noting that much of the impact of the decision will be decided in the lower courts given the fact that the Court failed to provide a standard of review for claims arising under the Second Amendment. They also hypothesize that, given the historical hostility of the lower courts to the “individual rights” view of the Second Amendment, it is quite possible that the lower courts will adopt a very narrow interpretation of the Heller decision. On the other hand, the authors discuss a number of reasons why Heller might turn out to be much more significant decision than many people might predict.