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Monday, July 02, 2007

So long, farewell . . . (with an administrative law kicker)

I'm going to sign off for this stint as well, but wanted to offer a few final notes before I go.

For you administrative law fans, keep an eye out for Riegel v. Medtronic (No. 06-179) next Supreme Court term.  The identified issue in the case is "whether the express preemption provision of the Medical Device Admendments to the Food, Drug, and Cosmetics Act, 21 U.S.C. 360k(a), preempts state-law claims seeking damages for injuries caused by medical devices that received premarket approval from the Food and Drug Administration."  Slightly beneath the surface, though, are some related and very interesting deference doctrine questions.  A couple of years ago, the FDA filed an amicus brief in a similar case before the Third Circuit in which the FDA opined that section 360k(a) does preempt state-law claims.  That amicus brief apparently contradicts a pair of amicus briefs that the FDA filed before the Supreme Court in the 1990s.  The courts sometimes grant Skidmore deference to amicus briefs; but if the Court does that, then how will it weigh the FDA's inconsistency against the thoroughness of its reasoning in the latest amicus brief?  For that matter, is Skidmore deference even appropriate when the question at issue has constitutional implications, as this one does?   This past term, the Court faced a very similar deference/federal preemption question in Watters v. Wachovia Bank, No. 05-1342.  The majority avoided the deference issue in Watters by deciding that the statute in question clearly preempted state law.  Justice Stevens in dissent suggested that such agency interpretations "may be entitled to 'some weight,'" then cited a few more obscure deference precedents that simply do not make clear which deference doctrine he was intending to apply.  This is a case with big implications on a lot of fronts.  Top administrative law scholars (Tom Merrill, Richard Pierce, Frank Cross, and Mark Seidenfeld) filed competing amicus briefs in the Watters case on the judicial deference question.  Definitely a case worth following.

On a related and totally self-promoting note, I just posted on SSRN a draft of an article on Skidmore that attempts a fairly comprehensive look at that standard as applied by the courts, particularly the federal courts of appeals, in the five years following the Supreme Court's decision in the Mead case.  My co-author and I do not address the preemption question raised by Riegel directly, although we do question briefly in this draft whether Skidmore deference is appropriate for agency interpretations that raise constitutional questions.

Blogging this past month has been fun.  Thanks again to the PrawfsBlawg folks for the opportunity.   And Happy Fourth to you all.

Posted by Kristin Hickman on July 2, 2007 at 12:48 PM | Permalink


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