The Truth about Torts: Using Agency Preemption to Undercut Consumer Health and Safety

William Funk is a Distinguished Professor of Law Emeritus at Lewis & Clark Law School in Portland, Oregon.

Professor Funk regularly teaches administrative law and constitutional law. He has also taught environmental law, toxic tort law, pollution control law, and a seminar on hazardous waste law. As part of government sponsored training programs, he has taught environmental law to federal judges and to employees of the Army Corps of Engineers, the U.S. Forest Service, and the U.S. Fish and Wildlife Service. 

Professor Funk left the practice of law for academia in 1983, but has remained actively involved in the everyday world of environmental law and regulatory practice. Over the years, he has consulted for the U.S. Department of Energy, the Administrative Conference of the United States, and the Columbia River Gorge Commission, as well as for attorneys on particular cases. He chaired an advisory committee for the Oregon Department of Environmental Quality (DEQ) that developed Oregon's Green Permit regulations and served for a number of years on an advisory committee for the Oregon DEQ drafting regulations governing hazardous waste cleanups. Professor Funk has been active in the American Bar Association's Section of Administrative Law and Regulatory Practice, where he is a past Chair of the Section, as well as chairing committees and editing its newsletter.

After receiving his B.A. from Harvard and his J.D. from Columbia, Professor Funk clerked for Judge James Oakes of the U.S. Court of Appeals for the Second Circuit. He then joined the Office of Legal Counsel in the U.S. Department of Justice. After three years in that position, he became the Principal Staff Member of the Legislation Subcommittee of the House Permanent Select Committee on Intelligence. In 1978 he joined the U.S. Department of Energy, first as a Deputy Assistant General Counsel and later as Assistant General Counsel. At the Department of Energy his principal responsibilities first involved the then-petroleum price and allocation system and later energy efficiency regulations and regulatory reform.

Professor Funk has published widely in the fields of administrative law, constitutional law, and environmental law. He is the author of Introduction to American Constitutional Law and a co-author of Administrative Procedure and Practice, Legal Protection of the Environment, and Federal Administrative Procedure Sourcebook.  

As a law student, Professor Funk was one of the founding editors of the Columbia Journal of Environmental Law. As a law professor, he has chaired both the Natural Resources Section and the Administrative Law Section of the Association of American Law Schools. He has been a frequent speaker on environmental subjects in CLE programs. He was recently elected to the American Law Institute. 

William Funk
Lewis & Clark Law School
Portland, Oregon
503.768.6606
email
website

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Sidney A. Shapiro holds the Fletcher Chair in Administrative Law at the Wake Forest University School of Law and is the Associate Dean for Research and Development. He is a member of the board of directors of the Center for Progressive Reform.

Professor Shapiro has taught and written in the areas of Administrative Law, Regulatory Law and Policy, Environmental Policy, and Occupational Safety and Health Law for 25 years.

While in academia, Shapiro has served as a consultant to the Administrative Conference of the United States (ACUS), the Office of Technology Assessment of the U.S. Congress (OTA), and the U.S. Occupational Safety and Health Administration (OSHA). With Professor Thomas O. McGarity, Professor Shapiro designed and helped initiate a rulemaking prioritization process for OSHA rulemaking during the early 1990s. As a consultant to OTA, Professor Shapiro assessed various regulatory tools or options that agencies can use to implement regulation. As a consultant to ACUS, Professor Shapiro studied the efficacy of the regulatory process at EPA (noise control), OSHA, and the Food and Drug Administration (FDA).

Professor Shapiro began his legal career as a trial attorney in the Bureau of Competition of the Federal Trade Commission and later worked as the Deputy Legal Counsel, Secretary's Review Panel on New Drug Regulation at the Department of Health, Education and Welfare.

Professor Shapiro has published widely in the areas of regulatory law and policy. He co-authored The People’s Agents and the Battle to Protect the American Public: Special Interests, Government, and Threats to Health, Safety, and the Environment, with CPR President, Rena Steinzor. This book reviewed years of government actions and inactions leading to the decline of the five protector agencies. His book, Risk Regulation at Risk: Restoring a Pragmatic Approach, analyzes health and safety and environmental protection laws and policy, and argues for a pragmatic approach to policy in these areas instead of using economic analysis to set regulatory goals. Workers at Risk, co-authored with Thomas O. McGarity, describes rulemaking, implementation and enforcement in the Occupational Safety and Health Administration from its inception in 1970 through 1990. The book analyzes OSHA's strengths and weaknesses and makes many recommendations for improving standard-setting and enforcement. Shapiro's casebook, Administrative Law and Procedure: A Problem Approach, co-authored with William Funk and Russell Weaver, is used in administrative law courses at law schools throughout the country. His casebook, Regulatory Policy and Law, is the first of its kind, and is used to train lawyers to evaluate and advocate for public policy.

Professor Shapiro has published dozens of articles on regulatory policy, health and safety laws, environmental law and administrative law in prominent law reviews, such as the Harvard Law Review, Duke Law Journal and the Wake Forest Law Review, as well as in specialty journals, such as the Administrative Law Review and the Ecology Law Quarterly.

Professor Shapiro has been an active participant in efforts to improve health, safety and environmental quality in the United States. He has testified before congressional committees on administrative law and occupational safety and health issues. He has worked with various public interest groups in advisory and support capacities, including Public Citizen Global Trade Watch, Public Citizen Congress Watch, and OMB Watch. 

Sidney Shapiro
Wake Forest University School of Law
Winston-Salem, NC
336.758.7320
email
website

 David C. Vladeck is a former Member Scholar of the Center for Progressive Reform, and now Director of the Bureau of Consumer Protection of the Federal Trade Comission.  Immediately prior to his government service, he was Professor of Law, Co-Director of the Institute for Public Representation at Georgetown University Law Center and Director, Center on Health Regulation and Governance of the O’Neill Institute for National and Global Health Law. He is the former Director of the Public Citizen Litigation Group.

Prior to joining the Georgetown faculty full time, Professor Vladeck spent more than 25 years at Public Citizen Litigation Group, first as a staff attorney, and then for ten years as its director. He has handled a broad range of litigation, including First Amendment, health and safety, civil rights, class actions, and open government cases. He has argued a number of cases before the United States Supreme Court, state courts of last resort, and more than 50 cases before the federal courts of appeal. He also testifies frequently before Congress and writes on administrative and constitutional issues. He has served on the Council of the Administrative Law Section of the American Bar Association and as a Public Member of the Administrative Conference of the United States. He was an inaugural member of the "Public Interest Hall of Fame," and was honored by Legal Times in May 2008 as one of the most influential lawyers in Washington, D.C., over the past 30 years.

Professor Vladeck is considered one the nation's foremost public interest litigators. He is responsible for developing and implementing the successful litigation strategy that forced the Occupational Safety and Health Administration to issue health standards for ethylene oxide, formaldehyde, benzene (on remand from the U.S. Supreme Court), cadmium, and hexavalent chromium, and to issue safety standards for hazard communication in the non-manufacturing sector, grain dust, and the lock out/tag out of energy sources. He represented Members of Congress and environmental groups in a successful challenge to the Environmental Protection Agency's wholesale failure to implement the Clean Air Amendments of 1990. He has played a lead role in the development of the First Amendment "commercial speech doctrine," arguing one landmark case before the United States Supreme Court and drafting briefs in several others. He has handled a number of prison reform cases, including the Supreme Court's recent ruling rejecting the contention that privately run prisons could assert governmental immunity in civil rights litigation brought by inmates. He handled a number of key separation of powers cases, including successful cases attacking the Reagan Administration's effort to impound monies appropriated for low-income housing and job training programs. And he has handled as many, if not more, open government cases than any other lawyer in the nation on behalf of scholars, journalists, Members of Congress, and public interest organizations.

Professor Vladeck has published widely in a number of areas. He has published book chapters on the Rehnquist Court's administrative law decisions, on preemption, on legal ethics, and on the regulation of non-profits.  He has written law review articles on preemption (including the Georgetown Law Journal, Cornell Law Review, Pepperdine Law Review and the American Constitution Society’s Advance); the first amendment (Case Western Reserve Law Review and Loyola of Los Angeles Law Review), mine safety (West Virginia Law Review, access to government information (University of Texas Law Review), and judicial selection (Florida State Law Review).

Professor Vladeck has been an active participant in efforts to improve health and safety regulation in the United States. He has testified before many congressional committees on administrative law, constitutional law and occupational safety and health issues. During the "regulatory reform" debates in Congress, Professor Vladeck was one of the few defenders of strengthening the role regulatory agencies play in safeguarding health and safety. He also serves as advisor to a number of public health and public safety organizations, on questions relating to administrative and constitutional law. He has also represented Members of Congress in a number of high-profile litigation matters, including a successful campaign on behalf of 16 members of the House Committee on Government Reform in an effort to force the Bush Administration to make public the year 2000 adjusted census data. 

David Vladeck
Georgetown University Law Center
Washington, DC 
202.662.9540
email
website

Karen Sokol is Associate Professor of Law at the Loyola University College of Law in New Orleans. 

Karen Sokol joined the Loyola University New Orleans College of Law faculty in 2009. Her teaching and research interests include environmental law, torts, products liability, and law and philosophy. Her current scholarship focuses on legal controls on marketing of dangerous products, climate change resilience, particularly for vulnerable countries such as Cuba and India, and, most recently, on the potential for forging more robust environmental and public health protections by incorporating Indian philosophy into Western jurisprudence, law, and policy. She will spend the spring of 2018 researching in India, supported by a Fulbright Award.

Professor Sokol graduated from Yale Law School, where she served as Articles Editor for the Yale Human Rights and Development Law Journal and was a member of the Allard K. Lowenstein International Human Rights Clinic. After law school, she clerked for Judge Carolyn Dineen King of the United States Court of Appeals for the Fifth Circuit and worked as an associate in the appellate section of Vinson & Elkins, LLP. She then worked as a policy analyst for the Center for Progressive Reform, writing a number of papers and articles on environmental and public health issues, with a focus on government transparency and corporate accountability. The year before coming to Loyola, she was a fellow at Georgetown University Law Center’s O’Neill Institute for National and Global Health Law. She is admitted to practice in the state of Texas and the U.S. Court of Appeals for the Fifth Circuit. 

Karen Sokol
Loyola University New Orleans College of Law
New Orleans, Louisiana
504.861.5593
email
website
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