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 scholars have largely disputed claims that there is a tort litigation crisis, the myth has not died despite the abundant contradictory evidence. The reason, according to this book, is that tales about frivolous lawsuits – “tort tales” – have been reinforced by the media, by public relations efforts by those oppose to accountability, and by prevailing individualistic values in America. Tom’s description of the McDonald’s coffee spill case has all of these elements.
David mentioned the newest myth—the one that the anti-accountability crowd is now pushing: the courts get to decide whether state common law is preempted by federal law. Hopefully this myth can be nipped in the bud before it becomes as pervasive as the first myth.
Although Congress is supposed to be in control of the question of whether state law is preempted, it does not always clearly indicate its intent. But the courts have not been respectful of Congress’ intent even when they have clearly said what they intend to happen. How is it that the courts have found preemption in cases where Congress has inserted a “savings” clause in legislation? These clauses in effect say that nothing in this law should be interpreted to preempt the operation of common law liability standards. Yet, the courts have found preemption. How has this happened and is there anything Congress can do about it?
The courts have recognized savings clauses, but judges then say that the existence of a savings clause does not mean that Congress meant to eliminate so-called obstacle preemption. This is a doctrine where the courts assume that Congress meant to preempt state law when it is an "obstacle" to the implementation a federal regulation. One would think that a savings clause indicates that Congress found that common law tort standards were not obstacles. Is there anything Congress can do to make its intent clearer? More broadly, should we retain obstacle preemption and, if so, under what circumstances?