Litigation

Why preemption matters and why Waxman seeks to gut it

By Carter Wood

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":

Full post as published by Point of Law on June 09, 2010 (boomark / email).