Professor Catherine Sharkey (now at NYU Law School), who’s written more about preemption than most of us have read, saw this morning’s post about how the Supreme Court often adopts the position on preemption urged by an agency in an amicus brief. She alerted us that she has an article that will appear in the April issue of the George Washington University Law Review that does not simply note this apparent coincidence (as we did), but rather proposes a new model that relies on that “coincidence” to explain and justify the Supreme Court’s preemption jurisprudence.
Here are the money sentences from the abstract of Professor Sharkey’s forthcoming article:

“Under this model, courts should look to agencies to supply the data and analysis necessary to determine if preemption is appropriate; i.e., to determine when a uniform, national regulatory policy with respect to a certain product makes the most sense or, instead, whether such regulation is better left to the states, in which case a plaintiff’s common law claim should be permitted to proceed. This model simply acknowledges and exploits the fact that agencies are best equipped to provide the information central to this determination (a fact that the Court apparently already recognizes). “

The complete article can be downloaded at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1101448

The two of us typically don’t like to be known by the company we keep (particularly since we keep the company of each other).

But, in Professor Sharkey’s case, we’ll make an exception.