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The Preemption War

The Preemption War: When Federal Bureaucracies Trump Local Juries

Thomas O. McGarity
Copyright Date: 2008
Published by: Yale University Press
Pages: 368
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  • Book Info
    The Preemption War
    Book Description:

    Most people are unaware of a quiet war that has been raging for the last decade in the courts, federal regulatory agencies, and Congress-a war over federal agency preemption of state common law claims. But the outcome of these battles will affect us all, says regulatory law expert Thomas O. McGarity, and consumers stand to be the biggest losers. In this comprehensive and balanced book, McGarity takes up for the first time this increasingly important subject. He shows how preemption affects the way citizens are protected from harm and companies are held accountable for damage they unlawfully cause.

    The book offers scholars and policymakers a full analysis of the legal and policy issues under debate, and it brings into sharp focus the impact of preemption on the lives of people involved in actual lawsuits. McGarity highlights the arguments for and against preemption and suggests guidelines for resolving difficult issues in a variety of contexts.

    eISBN: 978-0-300-15220-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-x)
  4. Chapter 1 Introduction
    (pp. 1-19)

    Susan Halvorsen and her husband, Jim Gjebic, had planned to spend a quiet Labor Day weekend relaxing at their Grosse Pointe, Michigan, home. The weekend got off to a great start with dinner and a movie but took a minor turn for the worse just before bedtime, when Jim felt a pain in his right thigh. Susan handed him the bottle of Vioxx that he had been taking for his rheumatoid arthritis, a somewhat rare affliction for a healthy thirty-four-year-old like Jim. He told her that he would join her after the pain subsided, and he returned to the living...

  5. Chapter 2 Regulation and Liability: Two Well-Worn Routes to Consumer Protection
    (pp. 20-44)

    In November 1965, a thirty-year-old graduate of the Harvard Law School whose job as a low-level government bureaucrat may have suggested to some of his high-powered classmates a future as an underachiever published a rather technical book entitledUnsafe at Any Speed: The Designed-in Dangers of the American Automobile.¹ Drawing on depositions from lawsuits, interviews with disaffected auto industry employees, and the “crashworthiness” research of two prominent safety engineers, the book documented serious safety defects in a popular rear-engine passenger car called the Chevrolet Corvair. Concluding that American automobile manufacturers, if left to their own devices, would always allow financial...

  6. Chapter 3 The Law and Politics of Preemption
    (pp. 45-59)

    Before proceeding to the battlefields of the preemption war, we must first ascend to a nearby hill to obtain a broader view of the lay of the land. In this case, the relevant terrain is the arcane federal law of preemption. Since Congress can change nearly any judicial resolution of a preemption issue, the primary focus of this book is on the debates over whether federal agency preemption of state common law claims is a good or bad idea in various regulatory contexts. Some familiarity with judicial doctrine is necessary, however, to understand how the preemption war has been waged...

  7. Chapter 4 The Preemption War in the Courts
    (pp. 60-110)

    The Supreme Court has decided hundreds of preemption cases during the past fifty years, and the pace appears to be accelerating. Yet, prior to theCipollonecase, in 1992, the Court had never held that a federal statute or regulation preempted state common law claims where the effect of the holding was to leave plaintiffs without a remedy.¹ Courts in subsequent cases could easily have limited that case to its unique institutional and historical setting. Instead, they turned it into the opening salvo of a preemption war that has continued unabated into the twenty-first century and has spread from the...

  8. Chapter 5 The Preemption War in Congress
    (pp. 111-151)

    Congress has only very rarely expressly preempted common law claims, and it ordinarily substitutes a cause of action in federal court or some alternative administrative regime to provide corrective justice when it does take away the common law rights of injured citizens. Preemption rarely entered into the debates over the landmark protective legislation of the 1960s and 1970s. Express preemption clauses were contained in the original bills, explained by a sentence or two in the relevant committee reports, and forgotten. To the extent that preemption came up at all, the debates were over whether federal regulatory programs should trump state...

  9. Chapter 6 The Preemption War in the Federal Agencies
    (pp. 152-178)

    Sometimes Congress explicitly delegates the power to preempt state law to a federal agency. The Surface Mining Control and Reclamation Act, for example, specifically authorizes the implementing agency to preempt state laws and to specify which laws are preempted.¹ None of these statutes, however, explicitly authorizes a federal agency to preempt statecommon lawclaims. Even absent an express delegation of the power to preempt, agency determinations concerning the preemptive effect of their statutes are of considerable importance. The Supreme Court in the famousChevroncase held that when federal agencies mean for their interpretations of ambiguous statutory language to...

  10. Chapter 7 Agencies, Juries, and the Public Interest
    (pp. 179-212)

    The decision to preempt requires Congress to balance a number of important considerations, not the least of which is the comparative institutional competence of federal regulatory agencies and state common law courts in providing protective justice and corrective justice while at the same time allowing the national economy to run efficiently. This chapter focuses exclusively on the question of institutional competence, and the two chapters that follow examine the other arguments for and against preemption. Among other things, this chapter explores arguments about comparative strengths and weaknesses of common law courts and federal regulatory agencies in providing technical expertise, policymaking...

  11. Chapter 8 The Case for Preemption
    (pp. 213-227)

    Even the not-so-frequent fliers among us are quite familiar with the warnings that flight attendants must provide before takeoff , the “fasten seat belt” warning light that tells us to remain in our seats, and the passenger safety briefing cards in the seat pockets in front of us. And the words “Please remain seated while the flight attendant prepares for arrival and cross-check” are blazoned in the memories of frequent fliers anxious to make their connections. What most airline passengers may not know is that these warning rituals are prescribed by regulations and advisory circulars issued by the Federal Aviation...

  12. Chapter 9 The Case Against Preemption
    (pp. 228-245)

    We begin our discussion of the case against preemption with the story of the disastrous marriage between the Ford Explorer and the Bridgestone/Firestone ATX tire. The story has its origins in a corporate marriage arranged by Henry Ford and Harvey S. Firestone in 1906 that was later solidified in the physical marriage of their grandchildren.¹ When the sport utility vehicle (SUV) became popular, in the late 1990s, Ford Motor Company engineers converted its successful Ford Ranger pickup truck into an SUV called the Ford Explorer.² The Rangers were already outfitted with Firestone tires. Ford engineers decided that a lower tire...

  13. Chapter 10 Ending the Preemption War
    (pp. 246-274)

    The preemption war has been raging for almost two decades, and it shows no signs of coming to an end any time soon. In fact, it is altogether possible that the best solution for society as a whole is for the war to continue unabated. There will always be horizontal tension between advocates of a strong state common law with a weak regulatory compliance defense and advocates of strong preemption of common law claims by weak regulatory requirements. Perhaps a “war without end” is exactly what society needs to ensure that legal decision makers are always exposed to both points...

  14. Notes
    (pp. 275-340)
  15. Index
    (pp. 341-356)