The Anti-Deference Pro-Preemption Paradox at the U.S. Supreme Court: The Business Community Weighs In

43 Pages Posted: 18 May 2017 Last revised: 28 May 2017

Date Written: May 1, 2017

Abstract

Two indicia of the Roberts Court’s alleged pro-business leanings are, first, its readiness to find state tort law preempted by federal law and, second, its skepticism toward Auer deference to federal agencies. But it is difficult to reconcile individual Justices’ — particularly those identified as part of the “conservative core” — pro-preemption positions and anti-Auer positions, and this tension suggests that the oft-advanced pro-business narrative warrants a closer look. The tension is on clearest display in drug preemption cases, where even the most anti-agency deference Justices readily defer to the Food and Drug Administration (FDA), particularly when the agency’s interpretation of its own regulations under Auer is at issue.

This Article examines the extent to which the business community is involved in, and is perhaps even playing a role in perpetuating, this paradox. It also remains to be seen how, if at all, this will affect the Court going forward.

Keywords: Preemption; Auer; Roberts Court; Pro-Business; FDA

JEL Classification: K13

Suggested Citation

Sharkey, Catherine M., The Anti-Deference Pro-Preemption Paradox at the U.S. Supreme Court: The Business Community Weighs In (May 1, 2017). Case Western Reserve Law Review, Vol. 67, No. 3, 2017, NYU School of Law, Public Law Research Paper No. 17-15, Available at SSRN: https://ssrn.com/abstract=2970710

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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