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The Preemption War: When Federal Bureaucracies Trump Local Juries

Thomas McGarity | April 11, 2020

For the last decade, Americans’ right to sue manufacturers whose products cause them injury or harm has been under attack. It’s been a quiet war, but it has been fierce, raging simultaneously in the courts, federal regulatory agencies, and Congress.

The conflict is over what is called agency preemption, and the fundamental question is whether and under what circumstances regulations by federal agencies may preempt – which is to say, trump – state laws allowing victims to bring suit against companies whose actions cause them harm.

The battle has received comparatively little media attention, but its eventual outcome could weaken health and safety protections for all Americans – not just the few who bring lawsuits. In the view of CPR Member Scholar Thomas O. McGarity, consumers stand to be the biggest losers. In his latest book, The Preemption War: When Federal Bureaucracies Trump Local Juries, McGarity explores the subject in a comprehensive fashion, demonstrating how the preemption battle affects the way citizens are protected from harm and companies are held accountable for damage they unlawfully cause.

Published by Yale University Press, The Preemption War offers scholars and policymakers a full analysis of the legal and policy issues at stake in the debate, and it brings into sharp focus the impact of preemption on the lives of people involved in actual lawsuits. McGarity highlights the arguments for and against preemption and suggests guidelines for resolving difficult issues in a variety of contexts.

  • Buy The Preemption War: When Federal Bureaucracies Trump Local Juries from Yale University Press or Amazon.
  • Read op-eds by Professor McGarity on key Supreme Court cases on preemption. A Rare Win for Consumers in the March 6, 2009 in the Dallas Morning News. Court Takes Up Preemption Doctrine, November 28, 2008 in the Austin American Statesman on the Wyeth vs. Levine; and The Danger in Defective Medical Devices, December 4, 2007 in the Austin American Statesman, on Riegel vs. Medtronic.
  • Editorial Memoranda. Read Professor McGarity's editorial memorandum in advance of Wyeth vs. Levine oral arguments before the Supreme Court, issued October 29, 2008. Read a post-decision editorial memorandum (56 kb download) by McGarity and fellow Member Scholar Nina Mendelson, issued on March 6, 2009.
  • Read about a CPR proposal for an Executive Order on preemption. In November 2008, the Center for Progressive Reform transmitted to the Obama Transition Team a slate of seven Executive Orders addressing a series of critical issues, including climate change, transparency in government, environmental justice, children's exposure to toxics, citizens' right to sue corporations whose products cause them harm, and stewardship of public lands. Read Protecting Public Health and the Environment by the Stroke of a Presidential Pen. Or read the news release.

About the Author

Thomas O. McGarity holds the Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law at the University of Texas in Austin. He is a member of the board of directors of the Center for Progressive Reform, and the immediate past president of the organization. He is the author of Reinventing Rationality: The Role of Regulatory Analysis in the Federal Bureaucracy and the coauthor of Workers at Risk, The Law of Environmental Protection and Bending Science: How Special Interests Corrupt Public Health Research.