CPR has published two white papers on “preemption”—a doctrine used by the courts to determine whether federal regulation of some type of corporate behavior bars a state from subjecting the corporation to its own laws. The first, The Truth About Torts: Using Agency Preemption to Undercut Consumer Health and Safety, came out in September, 2007, and the second, The Truth About Torts: Regulatory Preemption at the National Highway Traffic Safety Administration, just came out. The issue is complicated, but important, and I hope that we might discuss why consumers should be concerned about what appears to be a very arcane subject.
Preemption can affect two aspects of state law: state “positive” law (i.e., state laws and regulations) and state common law (i.e., tort law). The two CPR White Papers address preemption of state tort law, although they also discuss the preemption of positive law in order to distinguish the two situations. Should we be concerned with preemption of state positive law as well as preemption of state common law?
Do you find it surprising that the Bush Administration has led the effort to preempt state law? I thought that conservatives were in favor of maximizing the role of states in deciding public policy for their citizens and that they disfavored the federal government telling the states what to do. Yet, regulatory agencies in this administration, particularly the Food and Drug Administration (FDA), the National Highway Traffic Safety Administration (NHTSA), and the Consumer Product Safety Commission (CPSC), have been enthusiastic supporters of barring the states from applying common law liability standards to specific types of corporate behavior that they have already regulated.
This administration will soon be out of office. What do we know about an Obama or McCain presidency? Will the candidates if they become president continue the preemption policies favored by President Bush?
We hear all of these stories about run-away juries awarding millions of dollars for minor injuries; I’m thinking of the famous case of the woman who sued McDonald’s after she spilled coffee on her lap in her car. Isn’t it a good thing that we limit the operation of tort law? Should juries composed of lay people be making decisions about state public policies?
So, fellow bloggers, why is preemption such a big deal that CPR is writing a series of white papers about it? What role should the states play in holding corporations accountable for injuries and deaths that caused by their products? How is the preemption issue affected by politics and ideology? Can we trust juries to administer common law liability standards accurately and fairly?
Sidney Shapiro, CPR Member Scholar; University Distinguished Chair, Wake Forest University School of Law. Bio.
Frank Ackerman, CPR Member Scholar; Senior Economist, Synapse Energy Economics. Bio.
Robert Adler, CPR Member Scholar; Professor of Law, University of Utah, S.J. Quinney College of Law; Wallace Stegner Center. Bio.
William Andreen, CPR Member Scholar; Clarkson Professor of Law, University of Alabama School of Law. Bio.
Richard Andrews, CPR Member Scholar; Professor of Public Policy, University of North Carolina at Chapel Hill. Bio.
William Buzbee, CPR Member Scholar; Prof. of Law, Georgetown Law Center. Bio.
Jake Caldwell, Executive Director, Center for Progressive Reform. Bio.
| 1 Is there any reason to suppose that an Obama administration would make a distinction based on the type of law (postive versus tort) being preempted? Is it an important difference, politically or ideologically speaking? -- Christopher Helminski |