When Preemption becomes Intervention
Just read a good article over at the Washington Post on the rising tide of federal agency rules that include preemptive language.
One of the most difficult issues the plaintiff's bar faces in product liability actions is the mounting attacks on state sovereignty posed by the doctrine of federal preemption. It isn't ideologically familiar ground for trial lawyers to fight on: that state law should be protected against federal regulations. Yet, in today's climate, preemption rules declared by over eager executive agencies threaten the common law rights of state citizens across the nation. What is especially alarming is the relationship between the increase in federal rule making and campaign contributions to the executive's party. This can't be seen any longer as simply enforcing the constitutional standard that where federal law and state law conflict, federal law wins. It isn't preemption in fact, the new game is now intervention. Let's take last year's decision by the Consumer Product Safety Commission (CPSC) to issue its final rule on mattress flammability standards. As the article notes:
Further, compliance with the less stringent standard gets the manufacturer off the hook in any state lawsuit, even though before that standard was issued, they were making higher quality, less flammable mattresses for use in those states with higher flammability standards. Big government is back. As unfamiliar as fighting for state sovereignty may be for many trial lawyers, it seems corporate elites have had no difficulty doing ideological back flips to suddenly become champions of uniform, universal, federal regulations.
Here at the Law Office of D. Hardison Wood, we are very concerned that this trend, if left unchecked, will prevent regular people who can't afford a Washington lobbyist from being able to hold manufacturers accountable for the unsafe furniture, toys, airbags, seatbelts, car seats and other products that cause injury or even death. Indeed, everyone should be worried about this as the federal preemption trend might conclude in a manufacturer-led race to the bottom in safety standards... the lowest standard costing the most in campaign contributions.
And that is perhaps the best way to argue about this problem. Let's make it clear that these rules are bought and paid for by manufacturers. Our office will be doing a little digging on that, and as ex-Washington lobbyist, I can tell you for certain that only a little digging will be required to show a bright line between campaign contributions and federal intervention.
One of the most difficult issues the plaintiff's bar faces in product liability actions is the mounting attacks on state sovereignty posed by the doctrine of federal preemption. It isn't ideologically familiar ground for trial lawyers to fight on: that state law should be protected against federal regulations. Yet, in today's climate, preemption rules declared by over eager executive agencies threaten the common law rights of state citizens across the nation. What is especially alarming is the relationship between the increase in federal rule making and campaign contributions to the executive's party. This can't be seen any longer as simply enforcing the constitutional standard that where federal law and state law conflict, federal law wins. It isn't preemption in fact, the new game is now intervention. Let's take last year's decision by the Consumer Product Safety Commission (CPSC) to issue its final rule on mattress flammability standards. As the article notes:
The Consumer Product Safety Commission was largely silent on preemption until it issued a rule setting standards for mattress flammability last year. The directive citing federal supremacy didn't appear in the proposed rule a year earlier.So let's get this straight, the draft language circulated to everyone (and the public) didn't have preemptive language in it. Yet, it got in there anyway. How?
It was included in the final version, after mattress manufacturers asked for it in their comments on the initial rule.Manufacturers just asked for it! The Bush administration wanted to protect those manufacturers from states that have more stringent flammability standards. So presto, a less stringent rule now becomes THE standard for everyone.
Further, compliance with the less stringent standard gets the manufacturer off the hook in any state lawsuit, even though before that standard was issued, they were making higher quality, less flammable mattresses for use in those states with higher flammability standards. Big government is back. As unfamiliar as fighting for state sovereignty may be for many trial lawyers, it seems corporate elites have had no difficulty doing ideological back flips to suddenly become champions of uniform, universal, federal regulations.
Here at the Law Office of D. Hardison Wood, we are very concerned that this trend, if left unchecked, will prevent regular people who can't afford a Washington lobbyist from being able to hold manufacturers accountable for the unsafe furniture, toys, airbags, seatbelts, car seats and other products that cause injury or even death. Indeed, everyone should be worried about this as the federal preemption trend might conclude in a manufacturer-led race to the bottom in safety standards... the lowest standard costing the most in campaign contributions.
And that is perhaps the best way to argue about this problem. Let's make it clear that these rules are bought and paid for by manufacturers. Our office will be doing a little digging on that, and as ex-Washington lobbyist, I can tell you for certain that only a little digging will be required to show a bright line between campaign contributions and federal intervention.
