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Preemption as a Judicial End-Run Around the Administrative Process?


Catherine M. Sharkey


New York University School of Law

April 11, 2012

Yale Law Journal Online, Vol. 122, 2012
NYU School of Law, Public Law Research Paper No. 12-16

Abstract:     
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?

Number of Pages in PDF File: 13

Keywords: preemption, APA, Chevron, Douglas, agency, conflict

JEL Classification: K13, K23, K41

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Date posted: April 11, 2012 ; Last revised: May 3, 2012

Suggested Citation

Sharkey, Catherine M., Preemption as a Judicial End-Run Around the Administrative Process? (April 11, 2012). Yale Law Journal Online, Vol. 122, 2012; NYU School of Law, Public Law Research Paper No. 12-16. Available at SSRN: http://ssrn.com/abstract=2038470

Contact Information

Catherine M. Sharkey (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
212-998-6729 (Phone)
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