Can Congress Go Too Far in Preempting State Law ?

All Publications, Commentary, Federal Preemption, Published Articles, US Supreme Court /

Federal preemption aficionados will find today’s seemingly ho-hum Supreme Court decision in Gobielle v. Liberty Mutual Ins. Co. to be of considerable interest. The Court held that ERISA expressly preempts a Vermont statute requiring disclosure of ERISA-regulated health care plan payment information. According to Justice Thomas’ concurring opinion, ERISA “contains what may be the most […]

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Four Decades of U.S. EPA Review and Continuous Federal Registration of Creosote

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For almost 70 years, coal tar-derived creosote has been federally registered for use as a wood preservative. During the past 40 years, the risks and benefits of creosote, like those of other major industrial wood preservatives, have been reevaluated by U.S. EPA in three successive and comprehensive review processes—Special Review, Reregistration Review, and currently, Registration

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How to Choose and Hire an Appellate Attorney

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So the case that you lost—or won—at the trial court level is going to be appealed. What now? If you have not already done so, you should select and engage an appellate attorney. Whom to choose and how to forge a successful relationship with that attorney often involves considerations that are specifically tailored to appellate

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When Enough is Enough! How To Oppose a Cert Petition

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You’ve won your case in a federal court of appeals. Now the only hurdle between you and that long-awaited victory celebration is the certiorari petition that your opponent is sure to file.  This article discusses whether, when, and how to oppose a certiorari petition in the U.S. Supreme Court.

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The United States as Amicus Curiae: Making Uncle Sam Your New Best Friend

All Publications, Amicus Strategy & Procedure, DRI, Published Articles, US Supreme Court /

The United States can be a party’s best friend—or worst foe—when it enters an appeal as amicus curiae. My article for the DRI Appellate Advocacy Committee’s Certworthy newsletter provides attorneys with some practical guidance about interacting with the U.S. Department of Justice when it is engaged in the process of deciding whether to participate in an

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