TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Wednesday, September 12, 2007

Senate Judiciary Committee Hearing on Preemption

The Senate Judiciary Committee is holding a hearing today at 11:00 am (in Dirksen-226 if you want to stop by) on "Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?"   

The witness list includes Representative Donna Stone (R-Delaware Assembly), President of the National Conference of State Legislatures, Alan Untereiner, a partner with Robbins, Russell, Englert, Orseck & Untereiner LLP, Collyn Peddie, a partner with Williams Kherkher, Viet Dinh, Professor of Law at Georgetown, and David Vladeck, Professor of Law at Georgetown. 


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Preemption is a trick because it only absolves the guilty: The innocent would get off anyway, but with preemption the wrong-doer gets off too. Imagine you're crossing a street and a speeding drink driver runs a red light and runs you over; you've got pretty serious damages and a good cause of action, right? Preemption would let that driver off the hook because the criminal penalties are exclusive of any civil remedy the victim might have. Is that just? Hell no. Big companies want preemption for one reason - because it gets them off the hook when they've been negligent or engaged in misconduct and caused serious injuries and death.

Posted by: Theo | Sep 12, 2007 4:11:27 PM

The drunk driver analogy fails unless the federal government had put into place an extensive regulatory system for drunk drivers, perhaps including something that purports to ensure that no driver is drunk before entering the vehicle. Nothing like that exists, so no, that's not the same thing.

And of course, the first sentence skips over some significant complications. "The innocent would get off anyway." Well, maybe. Defendants certainly argue that a lot of innocents get hit with judgments from juries who fail to evaluate the products correctly. Even setting that aside (as I think it's probably overstated), the innocent still pay enormous lawyer fees to defense lawyers, have substantial reputational harm, etc.

Just to note, I'm not actually in favor of complete preemption in most settings, in particular not with the regulatory setting we presently have. But that comment ignores significant issues I wanted to flag.

Posted by: Bill Childs | Sep 13, 2007 6:39:11 AM

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