Sunday, April 15, 2012
Cathy Sharkey (NYU) has posted to SSRN Preemption as a Judicial End-Run Around the Administrative Process?. The abstract provides:
Judicial review of agency action under the Administrative Procedure Act (APA) and preemption challenges provide parallel proceedings for resolution of disputes over whether state and federal law are simpatico or at war. Douglas v. Independent Living Center of Southern California, Inc., provides an opportunity to reflect upon the coexistence of, and relationship between, these parallel tracks for adjudicating federal-state conflicts. Who is, and who should be, the ultimate arbiter of whether such federal-state conflicts exist and how to resolve them — agencies or courts?
In this Essay, I used Douglas as a lens through which to explore two concepts: first, whether courts can act as “prompters,” pushing federal agencies to discharge their duty to weigh in on whether a conflict between federal and state law exists in a given context; and second, whether there can exist a synergistic relationship between courts and agencies in determining whether a conflict between federal and state law exists. Specifically, I explore two questions left unresolved by the Court’s Douglas decision: (1) Why permit a preemption cause of action at all in situations where there is a viable administrative action? And (2) where parallel proceedings persist, should agency determinations receive varying degrees of deference in each?