Sharkey article cited in Third Circuit opinion

In his dissent in Colacicco v. Apotex, in which the majority held that a state tort failure-to-warn claim was preempted where the FDA had approved the drug at issue and based on the FDA's position on preemption, Judge Thomas Ambro of the U.S. Court of Appeals for the Third Circuit cited Samuel Issacharoff's and Sharkey's article "Backdoor Federalization." The title of that article refers to a trend in the federal courts toward finding state law preempted. The article was referenced to show that centralized federal control can facilitate uniform regulation of a national market and prevent states from intefering with the affairs of other states. A separate article by Sharkey, "Preemption by Preamble: Federal Agencies and the Federalization of Tort Law," was cited for the proposition that the trend toward federalization is leading to agencies getting expansive discretion to interpret or declare the preemptive scope of the regulations they promulgate but not having latitude to infer private rights of action under those same regulations.

Read "Backdoor Federalization" by Samuel Issacharoff' and Catherine Sharkey

Read "Preemption by Preamble" by Catherine Sharkey