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Fighting preemption

March 2007 | Volume 43, Issue 3

Why preemption proponents are wrong
Brian Wolfman

A favorite argument of preemption advocates is that state tort law and state positive law are the same, because they both perform regulatory functions. But that argument has little support in legal theory or real life—and it should carry no weight in court. Federal regulations were meant to complement remedies available through the civil justice system—not replace them.

Taking on big pharma—and the FDA
Louis M. Bograd

In the preamble to its new prescription labeling rule, the FDA claims that consumers can’t sue drug companies in state court for injuries or deaths caused by FDA-approved prescription drugs. Injured consumers now often face two opponents—the drug makers and the government. Fortunately, they have strong advocates in the plaintiff bar who have achieved some key legal victories.

Don’t let preemption ground your aviation case
Michael L. Slack and Donna Bowen

The Federal Aviation Act expressly states that it doesn’t preempt state law. But that won’t stop the defendant in an aviation case from asserting implied preemption, or from arguing that your case raises a federal question and must be removed to federal court. Learn how to anticipate defense tactics and formulate your pleadings to keep your client’s case alive and in state court, where it belongs.

Focus on facts to defeat preemption
Karen Barth Menzies

Defendants argue that they should not be held to standards that the government has not required. But many courts hesitate to preempt claims if plaintiffs can show that federal agencies have been unduly influenced by the industries they regulate. Factual evidence alone won’t decide a preemption question, but it can bolster your argument that an agency’s action—or inaction—should not doom your client’s case.

A view from the states on stealth tort ‘reform’
Interview with Leticia Van de Putte

The legal, administrative, and financial burdens imposed by federal preemption have sparked the ire of state lawmakers, who feel their right to self-governance and their citizens’ well-being are at risk. The president of the National Conference of State Legislatures talks about her group’s efforts to stop the federal government’s preemption power grab.

Feature

Outsourcing for the small law office
John Tredennick

Today’s global marketplace and advanced communications give small-firm lawyers a great new hiring option. You can find paralegals, legal secretaries, and even lawyers who are willing to work on a per-day or per-project basis, allowing you to get top-notch work for a fraction of what you’d pay in salaries—and with no payroll headaches.