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Why preemption matters and why Waxman seeks to gut it

David Freddoso of The Examiner is one of the few reporters/columnists to write consistently about the efforts in Congress to expand litigation through legislation. Today he shines the light on Rep. Henry Waxman's amendment to gut federal preemption via the pending Motor Vehicle Safety Act, H.R. 5381. As we summarized in this post, Waxman's amendment would ban as well as retroactively vitiate federal preemption language in National Highway Traffic Safety Administration regulations.

The value of preemption is difficult to explain in layman's terms, but Freddoso does a good job in the column, "Making automobiles safe, or making trial lawyers rich?," concluding:

There are legitimate arguments for and against federal rules that pre-empt state lawsuits. But for automakers, whose products are already regulated by the federal government under the Constitution's interstate commerce clause, the combination of stringent federal standards and fickle state juries represents the worst of all worlds. They must follow federal rules under penalty of law, but then randomly selected, non-expert jurors can essentially ignore those rules and find fault with their designs anyway.

That won't make you any safer on the highway, but it will make a lot of lawyers very rich.

Victor Schwartz and Cary Silverman of Shook, Hardy and Bacon delve into the legal issues in a new article in the Tulane Law Review, "Preemption of State Common Law by Federal Agency Action: Striking the Appropriate Balance that Protects Public Safety":

After a brief review of the basics of preemption, this Article considers the public policy underlying preemption of common law claims by federal agency regulations. Next, the Article examines the recent development of preemption law, following two major United States Supreme Court decisions on preemption and President Barack Obama's instructions on preemption to heads of federal regulatory agencies. Finally, the Article notes that when the tension between federal regulations and state tort claims does not rise to the level of preemption, state law provides courts with discretion to consider the manufacturer's compliance as satisfying the common law standard of reasonable care and establishing that the product is not defective. The Article concludes by expressing concern that the recent rage against preemption in favor of litigation may lead to less safe products and place the public at risk.

A studied, practiced, not entirely sincere rage, we think.

The Senate Commerce Committee is scheduled to mark up its own version of the Motor Vehicle Safety Act, S. 3302, on Thursday at 2:30 p.m. today. The current bill does not have anti-preemption language in it.

Disclosure: The National Association of Manufacturers, my employers, works with Shook, Hardy and Bacon on select litigation and amicus briefs.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.