Abstract

http://ssrn.com/abstract=1472423
 
 

Citations (1)



 
 

Footnotes (204)



 


 



Avoiding Deference Questions


Garrick B. Pursley


Florida State University - College of Law


Tulsa Law Review, Vol. 44, No. 3, pp. 557-586, 2009
U of Texas Law, Public Law Research Paper No. 161

Abstract:     
In Riegel v. Medtronic, Inc., the Supreme Court held that FDA approval of a medical device preempted state common law tort duties. But the Court did not clearly resolve the substantial question, of administrative and constitutional law, of whether courts owed deference to agency interpretations of the preemptive scope of the statutes they administer.

This article argues that Riegel can be read as not simply deferring this deference question but as part of a trend in recent decisions favoring a rule directing courts to avoid deciding it. The Article canvasses the various rationales for constitutional avoidance rules and argues that the rule the Court appears to have implicitly adopted is justified because it allows courts to resolving a difficult constitutional question - the question of how constitutional norms allocate, among Congress, the Executive, and federal courts, the responsibility for police the borders between federal and state power and between legislative and executive authority. The Article then explains how the proposed deference-avoidance rule would work in practice, with respect to both Chevron deference and Skidmore deference.

Number of Pages in PDF File: 31

Keywords: Search Papers, Constitutional Law, Preemption, Federalism, Administrative Law, Deference, Chevron, Skidmore

Accepted Paper Series


Download This Paper

Date posted: September 13, 2009  

Suggested Citation

Pursley, Garrick B., Avoiding Deference Questions. Tulsa Law Review, Vol. 44, No. 3, pp. 557-586, 2009; U of Texas Law, Public Law Research Paper No. 161. Available at SSRN: http://ssrn.com/abstract=1472423

Contact Information

Garrick Pursley (Contact Author)
Florida State University - College of Law ( email )
425 W. Jefferson Street
Tallahassee, FL 32306
United States

Feedback to SSRN


Paper statistics
Abstract Views: 540
Downloads: 71
Download Rank: 197,299
Citations:  1
Footnotes:  204

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.547 seconds