Geoff Hazard has published an article called "Quasi-Preemption: Nervous Breakdown in Our Constitutional System," 84 Tulane L. Rev. 1143 (2010). Geoff points to the hodgepodge of Supreme Court decisions on preemption with respect to drugs and medical devices and calls out Congress and the agencies for failing to think more deeply about preemption. Here's an excerpt:
The result, evident from the prevailing pattern, is: Let the courts work it out ad hoc. That resolution is often resorted to by the courts themselves, including the Supreme Court, in decisions that often appear merely ad hoc. Dealing more efficiently and effectively with problems of federal preemption would be expensive and would require much more attention and self-discipline on the part of Congress, the Executive, and the agencies.
Tuesday, July 20, 2010
Friday, July 9, 2010
Ethan Leib and his co-authors of Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford 2009) have responded to comments on their work by a number of other academics. The response appears in the Yale Law Journal, and the link is here: