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Yale Journal Online

Volume 121, Issue 7, May 2012

Article
Essay
Features
Notes
Comment

Forthcoming

ARTICLES

Regulating Opt-Out: An Economic Theory of Altering Rules
Ian Ayres

Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make? 
D. James Greiner & Cassandra Wolos Pattanayak

ESSAY

The Antitrust/Consumer Protection Paradox: Two Policies at War with Each Other
Joshua D. Wright

NOTES

Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to Discovery
Jonah B. Gelbach

Mandatory and Fair?: A Better System of Mandatory Arbitration
Miles B. Farmer

COMMENTS

Fair Notice About Fair Notice
Jeffrey A. Love

Corporate Purposes in a Free Enterprise System: A Comment on eBay v. Newmark
David A. Wishnick

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Douglas and the Fate of Ex Parte Young icon.pdf Print E-mail
Stephen I. Vladeck, Monday, 30 April 2012
**This Essay is part of a Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

Dissents are frequently an unreliable guide for assessing the implications of majority opinions. As Judge Friendly once put it, “Often their predictions partake of Cassandra’s gloom more than of her accuracy.”1 Sometimes, however, the rationale of a dissent may help to explain a majority’s decision not to decide a particular issue, as embodied in the Supreme Court’s February 22, 2012, holding in Douglas v. Independent Living Center of Southern California, Inc.2 Writing for a five-to-four majority, Justice Breyer avoided the question on which the Justices had granted certiorari, i.e., whether the Supremacy Clause provides Medicaid beneficiaries and providers with a cause of action to enjoin California state officials from enforcing a state law allegedly in violation of—and therefore preempted by—the federal Medicaid statute.3 Because intervening administrative action had changed the posture of the case, the majority concluded that the matter should be returned to the Ninth Circuit, which could consider the effect of such developments—if any—as a matter of first impression.
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Preemption as a Judicial End-Run Around the Administrative Process? icon.pdf Print E-mail
Catherine M. Sharkey, Monday, 30 April 2012
**This Essay is part of a Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

Federal agencies play a dominant role in administering federal statutory schemes. At the front lines, they are tasked with interpreting statutes, enacting regulations to implement federal programs, and enforcing federal directives. During the course of adjudication or rulemaking, federal agencies are sometimes called upon to determine whether state law conflicts with federal law. That conflict inquiry is at the heart of preemption disputes before state and federal courts. Private parties wield preemption—typically as a defense—to stave off the effects of a state law allegedly trumped by federal law under the Supremacy Clause. Courts are then called upon to decide the extent to which state law is inconsistent with federal law. Judicial review of agency action under the Administrative Procedure Act (APA) and preemption challenges thus provide parallel proceedings to resolve disputes over whether state and federal law are simpatico or at war.

Douglas v. Independent Living Center of Southern California, Inc.1 provides an opportunity to reflect upon the relationship between these parallel tracks for adjudicating federal-state conflicts. Who is, and who should be, the ultimate arbiter of the existence of federal-state conflicts and how to resolve them—agencies or courts? In this Essay, I use Douglas to explore two questions: first, whether courts can act as “prompters,” pushing federal agencies to discharge their duty to weigh in on potential conflicts between federal and state law; and second, whether a synergistic relationship can exist between courts and agencies in making such conflict determinations.
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