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William Funk | August 7, 2008

Preemption: The Courts, the Executive, and Congress

There are three relevant actors in the preemption play: the courts, the executive, and the Congress. For various reasons, the mood of the Supreme Court at the present time is to limit tort actions generally. “Tort reform,” generally unsuccessful in state legislatures and Congress, is being implemented by the Supreme Court unilaterally. Daubert requirements for […]

Nina Mendelson | July 31, 2008

The Omniscient Agency Myth

There are two issues kicking around in this discussion: (1) Should state tort law be preempted if there is some sort of federal regulation in place?   (2) Which institutions – particularly federal agencies and courts – are legally empowered and/or competent to decide that question? I’d like to chime in on (1), but I hope we’ll […]

Sidney A. Shapiro | July 30, 2008

Why Do the Courts Not Respect Congressional Intent?

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 […]

David Vladeck | July 29, 2008

More than Just Tort Myths; It is Immunity and Constitutional Myths

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 […]

Thomas McGarity | July 28, 2008

The Golden Arches Coffee Myth

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 […]

Sidney A. Shapiro | July 27, 2008

Getting Started

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 […]