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Better than the Sunday Times: A Quiet Moment to Think about Delegations and Preemption by Congress

By E.L. Lipman

Among the items that have been posted recently to the Social Science Research Network are three articles that may be of interest to practitioners of Administrative Law. These articles, which provide a great opportunity to think about some of the broader landscape of our law, are:

n Deadlines in Administrative Law, by Professors Jacob E. Gersen (of the University of Chicago Law School) and Anne Joseph O?Connell (of the University of California, Berkeley - School of Law, Boalt Hall), explores how Congress exerts control over Executive Branch agencies by setting timelines for the completion of administrative action. Both an abstract of the article and the complete work are accessible here.

n Agency Preemption and the Shimer Analysis: Unmasking Strategic Characterization By Agencies and Giving Effect to the Presumption Against Preemption, by Professor Karen Jordan (of the Brandeis School of Law - University of Louisville) examines how federal agencies can engage in ?strategic characterization? ? a practice of pointing to Congress as the source of preemption of state laws, rather than the agency?s own regulatory designs. Professor Jordan urges the courts to use a ?totality of the circumstances approach? when deciding whether Congress or an agency is the source of preemption, so as to give effect to the ?presumption against preemption.? Both an abstract of the article and the complete work are accessible here.

n Lastly, but hardly least, is State Innovation and Preemption: Lessons from Environmental Law, in which Minnesota?s own Alexandra B. Klass (Associate Professor at the University of Minnesota Law School) argues that ?in cases where Congress has expressed an intent to preserve state law in the federal regulatory framework governing areas of ?traditional state concern,? such intent should be construed not only to preserve state law in its current form but also to act as an implied delegation to states to fulfill federal as well as state policy goals going forward.? Both an abstract of the article and the complete work are accessible here.

Full post as published by Within the Scope on February 17, 2008 (boomark / email).