Cornell Law Review Volume 93 Issue 5

Dirty Dancing – The FDA Stumbles with the Chevron Two-Step: A Response to Professor Noah

Professor Lars Noah deserves much credit for exposing some of the myriad ways in which the Food and Drug Administration (FDA) has consistently sought to expand its authority through questionable, and perhaps in some cases abusive, legal practices. As Professor Noah observes, there are signs that the federal courts’ century-long honeymoon with the FDA may be ending —and perhaps the FDA
never deserved the solicitude that it has traditionally received from both the judiciary and Congress. If Professor Noah can hasten the onset of a more realistic legal and public attitude toward the FDA, he will have performed a great service.

The purpose of this Response is to highlight two gaps in Professor Noah’s commendable survey of questionable FDA practices, one of which invites a sequel to Professor Noah’s article, and the other I
hope to fill here.

 

To read the complete Response, click “VIEW PDF” below.