The Nastiest Preemption of Them All
One of the main weapons that defendants have developed over the last thirty years to defeat claims by workers, consumers, and environmentalists is preemption. It is based on the well-known and necessary rule found in the Supremacy Clause of the Constitution that, when there is a conflict between a federal law and a state law, the federal law trumps ("preempts") the state provision. If we are to have a national government, including a constitution, it could hardly be any other way. What is new is how important preemption has become and what corporate America claims federal law preempts.
Most preemptions arise when Congress assigns regulatory responsibility to a federal agency and either explicitly, or implicitly, preempts contrary state law. Some preemptions are non-controversial; there would be chaos if every state tried to set standards for shatterproof glass on cars or mandated their own labels for drugs. Having multiple regulators for a single product would also drive up costs enormously for the manufacturers, with little reason to believe that state regulators could do a better job.
Then defendants started to think about preemption of traditional tort and contract claims for money damages. According to their theory, if state regulators can't tell a company that it has to do more than federal law requires, how can a court, let alone a jury do that? In other words, federal rules are not just floors, below which no company can go, but ceilings as well. Thus, if a defendant is not violating federal law, it cannot be liable in tort or contract under state law either. Or, as one of my colleagues once described preemption, "it's a get out of jail free card."
There are a whole series of legal arguments why federal statutes and rules do not preempt state law claims. In fact, in many cases, the Supreme Court has rejected broad claims of preemption, often overruling the circuit courts on this issue. Of course, if Congress is clear, which it generally is not, then state claims based on conduct that is lawful under federal law must fail.
The theory of this kind of preemption is that the federal regulator has all of the relevant information before it, has time and resources (and political will) to enforce its mandate fully, and has struck a proper balance between regulating too much and too little. In the real world, of course, none of those assumptions is true. In addition, new information (such as adverse drug reactions or further studies) comes to light that would alter the agency's conclusion, if it knew about it and did something. Given the limits of federal agencies, private actions are a vital supplement, both in ferreting out information and holding companies to the law, to what federal agencies can do.
As bad as some of these pro-preemption claims are, both legally and as a policy matter, they are nothing compared to the "Protection of Lawful Commerce in Arms Act," Public Law 109-62, which was signed into law on October 26, 2005. Its primary effect is to preempt virtually all claims against gun manufacturers for money damages resulting from misuse of a firearm. But it also applies to efforts to use the law of nuisance and other similar doctrines to enjoin conduct that the manufacturer knows will create unreasonable risks of harm to innocent people. Not only are private parties barred from bringing such suits, so are state and local law enforcement personnel. There are a few exceptions to the broad range of conduct that is now protected, but not many, and they are only for conduct that also constitutes a knowing violation of federal or state law or where there is a design defect in a gun that causes injury to the user, which even the gun lobby could not bring itself to find acceptable.
The worst part of the law is what it does not contain. There is not a single new federal requirement or prohibition, other than a requirement that sellers of handguns provide a gun storage or safety device with them. No federal agency is permitted, let alone required to regulate the firearms industry to reduce the risks that it imposes on the public. No other statute, either alone or in conjunction with existing laws already in place, ever took away rights to sue for damages or an injunction, without giving something in return. And not only will there be no federal regulator to step in, but state and local officials are also barred from enforcing their existing laws, or enacting new ones, to augment them.
How did this law pass? The gun lobby and its ally the NRA are very powerful, and they are not afraid to use their muscle to retaliate against those who oppose them. Gun victims are not a strong group, and most others did not see their problems as tied to the fate of this bill. No one seems to have asked why a federal law was needed that imposes a national solution to what is, at most, a local concern. And if gun manufacturers are now free of judicial scrutiny, how can we expect to repel the pleas of makers of products that are designed to help people, not kill them, but sometimes do not work as advertised?
The answer has to be that all attempts at preemption, legislative or administrative, must be exposed and opposed, because each new incursion brings with it multiple "me-too" requests. No claim is safe so long as the preemption dragon still stalks the countryside.