I’m glad that we have an opportunity to blog about preemption because, as the previous blogs discussed, the folks pushing preemption are so good at creating myths around this subject. One—elaborated on by Tom McGarity—is that the jury system is not to be trusted. Another—discussed by David Vladeck—is that it is up to the courts to decide whether state law is preempted. Both myths share one thing in common: they were created and marketed by those who would like to avoid being held accountable under state common law liability standards for actions that harm people.

Anyone interested in why the first myth—the civil justice system cannot be trusted—is so powerful might want to take a look at a book by William Hamilton and Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis. The authors demonstrate how, although the …

Tom's point about the use of myths to drive the tort reform agenda is a powerful one.  But this battle is about more than myths about torts; it is also a battle about myths about constitutional law.    

Tort Myths

In most of the tort suits that trigger preemption defenses, there is no plaintiff whose story is susceptible to ridicule.  Tort cases are almost invariably brought by people who jurors, once they hear the plaintiffs' stories, sympathize with --- which is why defendants are so leery of letting tort cases get to juries in the first place.

That is why preemption isn't just the defense du jour --- a fad that will soon pass.  It is a door-closing device that shuts the courthouse door to injured parties, ends the case before plaintiffs and their lawyers can engage in discovery, and spares the defendant both the costs of defending …

You are right, Sid, that we hear lots of horror stories about so-called “frivolous litigation” and “runaway juries” from those who want to take away the right of ordinary citizens to hold big companies accountable for the damage caused by negligence and defective products. The stories are very effective in giving the public the impression that the system is badly broken and in dire need of fixing. The problem is that most of them are myths.

Take the notorious McDonald’s case that you mention. The anti-lawsuit pundits have characterized this case as a situation in which a careless woman drove up to a McDonald’s, ordered coffee, drove off, stuck the coffee between her legs and spilled the coffee in her lap when she tried to remove the lid while she was hurrying off to her next destination. Rather than take personal responsibility for her carelessness …

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 …