Federal Judiciary

Academic Round-Up

By Akin Gump Supreme Court Practice Group

In a prior academic round-up, I noted an article by Catherine Sharkey (New York University School of Law), see here, addressing some of the questions at issue in the two FDA preemption issues before the Court this Term, Riegel v. Medtronic and Levine v. Wyeth. Professor Sharkey has now posted a much longer piece on SSRN entitled “Products Liability Preemption: An Institutional Approach,” which addresses many of those same issues. The new article more broadly addresses federal preemption in product liability cases, but contains a substantial discussion of FDA preemption on pages 41-55. She notes the important role that agency positions have played in products liability preemption cases and proposes an “agency reference model” to fill the doctrinal gap in the Court’s jurisprudence in the area.

The Northwestern Law Review Colloquy has continued its series on the recently decided case of Bowles v. Russell.  The Colloquy had published two previous pieces on the Bowles case in prior months, including one by Professor Scott Dodson (University of Arkansas School of Law), see here, and one by Elizabeth Burch (Cumberland School of Law), see here.  Both pieces were previously discussed in these two academic round-ups, see here and here.   As I noted previously, the Court held in Bowles that the statutory time limitation for filing a notice of appeal is jurisdictional.  In one of the new pieces available on the Colloquy, E. King Poor (Quarles and Brady LLP) argues, contrary to Burch and Dodson, that Bowles was correctly decided based, among other things, on the history of the jurisdictionality doctrine in federal court, see here.  Perry Dane (Rutgers School of Law-Camden), on the other hand, argues that even with the jurisdictional classification of the rule in Bowles, nothing in the history of jurisdictionality doctrine requires the draconian application and inequitable consequences that resulted in that case, see here.

In light of the clear theme in today’s academic round-up on the Court’s pending and recently decided cases, I would like to highlight a series of “podcasts” put together by the Federalist Society on many of the leading cases of this and last Term.  I mention this series in the academic round-up because the commentators in these podcasts are usually law professors who have some expertise in the subject matter.  The three cases that have been most recently highlighted in the series are Quanta Computer v. LG Electronics (Chris Holman-UMKC School of Law), Stoneridge Investment v. Scientific-Atlanta (Stephen Bainbridge-UCLA Law School), and Virginia v. Moore (Orin Kerr-George Washington University Law School), but there are commentaries on a number of other cases available.  All of the podcasts in the series can be accessed here.  If anyone knows of any other similar series out there, such as by ACS, please let me know so that I can post links in a future academic round-up.

Full post as published by SCOTUSBLOG on January 30, 2008 (boomark / email).