Justinian Lane

The Republican Party of Texas Opposes FDA Preemption and damage caps

Well, at least in one instance.

RU 486 - We urge the FDA to rescind approval of the physically dangerous RU-486 and oppose limiting the manufacturers’ and distributors’ liability.

Source: A Look At The Republican Party Of Texas Platform — Capitol Annex

This hypocrisy has left me nonplussed.

Justinian Lane: Author Bio | Other Posts
Posted at 4:36 PM, Jun 20, 2008 in Damage Caps | FDA | Federal Preemption | Product Liability
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I'm not sure that your post proves any hypocrisy, without more.

There are many Texas Republicans that are not adament that FDA regulation preempt failure to warn lawsuits. In fact, I know many Texas Republicans, and most wouldn't know what 'preemption of failure to warn lawsuits' was.

Further, there are many, many Texas Republicans who don't necessary subscribe to every singe tenet of their state party platform.

In addition, I think that most of the advocates of preemption, such as myself, wouldn't subscribe to this position regarding RU-486.

Thus, to call this position hypocritical, assuming that the same people who advocate for FDA preemption are people who subscribe to the tenets of the Texas Republican platform, is troubling. It's kind of like a straw man.

Furthermore, it's not hypocritical to prefer preemption in the case of some drugs, but not others, just as it's not hypocritical to prefer preemption in some areas but not in others. I think we all agree that federal preemption of state segregation laws was a good thing. Does that make our preference of preemption a *moral absolute* such that we would need to prefer it in every circumstance? Of course not. So it is with the preemption of drugs. The Texas Republican Party would prefer it if abortion pill makers were as least profitable as possible. Hence the liability. That does not make their preference of preemption a moral absolute. The calculus of seeking as little fetus-termination as possible is not at play in the drug marketplace writ large.

In sum, I think it serve your readers better if you thought-out the posititions of those with whom you disagree.

Posted by: Lawyer | June 20, 2008 6:33 PM

Justinian mistakes party platforms as meaningful devices. In 21st century America, they're essentially about as meaningful as student government. We don't have a parliamentary system where a central party dictates what elected representatives vote for; what a handful of party activists do in their hobby time drafting party platforms has nothing to do with what the party does. (When the platform comes from the elected leadership, a la the Gingrich Contract with America, that's a different animal. But bottom-up platforms are meaningless. Bush ignored the 2000 Republican Party Platform, just as Clinton ignored the 1992 Democratic Party Platform.)

So there are hard-Christian trial lawyers like Mark Lanier and Ken Connor, both of whom have been praised in this blog, who recognize that the liability system can be used by trial lawyers to extract money not just against drugs that reduce pain and help schizophrenics, but also against drugs that offer contraceptive freedom. And reformers who support FDA preemption don't support Lanier or Connor in their attempt to regulate through litigation, even when abortifacents are at issue. The Christian trial lawyers behind this party plank oppose all FDA preemption; they won a meaningless political battle and got the plank adopted. Where's the hypocrisy? Senators Cornyn and Hutchison don't support this provision. The Chamber of Commerce doesn't support this provision. PHRMA doesn't support this provision. I don't support this provision. At most you've identified an inconsistency, but that's no different than President Clinton supporting NAFTA and Hillary Clinton demagoguing against it. It doesn't mean the Clintons are hypocrites, it means they disagree politically. Some Republicans think abortion is the overriding issue of politics and are single-issue voters; others don't think we should upset the consistency of a regulatory system to achieve through the courts what can't be achieved politically through the legislature and executive branches. If anything, this platform plank demonstrates why preemption is a good thing. Or are you hoping that right-wing trial lawyers sue contraceptive drugmakers and doctors into oblivion so that abortions are no longer readily available?

If you're looking for hypocrisy, look within your own blog, where Connor is hailed as a hero, or with the Democrats who are willing to cut anti-abortion deals so long as the trial lawyers are helped. And recognize that platform planks like this are a natural consequence of the Left's attempt to turn the judicial branch into a superlegislature.

Posted by: Ted | June 21, 2008 1:50 AM

Thanks for the substantive commentary. You make some very valid points.

I agree wholeheartedly that party platforms are pretty close to meaningless and are basically just filled with red meat for the base. I have to disagree with you on a couple of points, though. First, it's not just a mere inconsistency for the party to support damage caps in all cases, then support unlimited liability against RU-486 manufacturers and distributors. And second, I disagree that this is a result of the any party's attempt to turn the courts into a superlegislature. It's the result of our polarizing political process that characterizes all members of party X as good, and of party Y as bad.

And let's be fair, the Right is just as guilty if not more so of trying to acheive their desired results through the courts. Look at FDA preemption: Because the claims aren't expressly preempted by FDCA, the Right has asked the courts to find implied preemption.

Posted by: Justinian Lane | June 21, 2008 12:19 PM

These lawyers failed to persuade the legislatures or regulatory agencies by standard hearings. They seek to impose their unwanted values by the power of the court. They learned that method from the tyrannical left.

Judges who seek to impose their evolving values on the public should be removed by the administrative judge or get impeached. These judges are out of control in their tyranny and in their forcing their sick values on the public. They summer in Europe and bring back sick European, anti-democratic doctrines. They impose them on reluctant Americans in ghoulish, unauthorized human experimentation.

I do not distinguish between right and left. Rent seeking and tyrannical methods unite lawyers.

Posted by: Supremacy Claus | June 22, 2008 7:57 AM

The platform isn't talking about caps. It's talking about being able to bring a cause of action on behalf of a zygote injured by the drug.

Implied preemption is inherent in the structure of the Constitution. See Article VI, and read Greve's work on the subject. The result was achieved when the FDCA was passed by Congress, and it's the trial lawyers who seek to use courts to undo it.

Posted by: Ted | June 22, 2008 8:52 AM

Ted, you may also want to see the reams of cases holding that there is a strong presumption against preemption.

Posted by: Justinian Lane | June 23, 2008 2:29 PM

Those cases are both constitutionally incorrect and outdated. Again, read Greve on the subject, and note how the 7-1 Riegel v. Medtronic decision does not even mention the so-called presumption.

Posted by: Ted | June 25, 2008 8:53 AM

Reread Riegel. The question presented is:

"We consider whether the pre-emption clause enacted in the Medical Device Amendments of 1976, 21 U. S. C. §360k, bars common-law claims challenging the safety and effectiveness of a medical device given premarket approval by the Food and Drug Administration (FDA)."

The fact that there was a preemption clause is why the presumption against preemption wasn't a deciding factor. And you might want to read all of the opinion. Ginsburg did in fact mention that presumption:

"The presumption against preemption is heightened “where federal law is said to bar state action in fields of traditional state regulation.”" - And that's from a 1995 case; hardly an outdated legal concept.

Posted by: Justinian Lane | June 25, 2008 9:43 AM

"presumption wasn't a deciding factor"

For once it would be nice if you read the things you're commenting on; your comment here clearly demonstrates you didn't read the opinion or look beyond the questions presented for an excuse to ignore the fact that the majority of the Supreme Court does not believe there is a presumption against preemption.

Or are you calling Justice Ginsburg an idiot for saying that the so-called presumption was an issue and criticizing the majority for disregarding it?

Posted by: Ted | June 25, 2008 1:41 PM

Ted, you claimed that the presumption against preemption was (a) outdated, and (b) not mentioned in the opinion. You were wrong on both counts. Instead of owning up to your error, you're now accusing me of calling Ginsburg an idiot? Very mature.

You do I trust understand that there is no preemption clause in the FDCA, other than the preamble? And that the lack of a clause makes Levine a different case from Reigel?

Posted by: Justinian Lane | June 26, 2008 10:55 AM