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Primary Jurisdiction – More About That 16th Draft Pick

May 2020 - Drug & Device Law Blog
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[This guest post deals with some recent Supreme Court precedent that is helpful to primary jurisdiction arguments and that might otherwise have been missed.]

"Timing is everything in life. On April 29, after I finished reading Steve McConnell’s post playing off of the NFL draft, I started reading Supreme Court cases decided within the last few days. By chance the first one I looked at was Atlantic Richfield v. Christian, —S.Ct.—, 2020 WL 1906542 (April 20, 2020). It does not have to do with our sandbox; it is a CERCLA Superfund case. But when I read it, I immediately thought of primary jurisdiction (the 16th pick in in Steve’s post) though that term is never used in the case. It is not a classic primary jurisdiction case which involves prudential deference by a court to an agency with specific expertise on an issue before the court. However, the underlying rationale of the doctrine was implicated in Atlantic Richfield by statutory scheme, since Congress gave the EPA specific powers relevant to the issue before the court (remediation of Superfund sites). The case was resolved on that statutory basis."

Read the blog post here.

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