October 9, 2008

Eliminating Federal Preemption: Good for Plaintiffs’ Lawyers, Bad for Everyone Else

In the Fresno Bee, George Washington University Law School lecturer Jeffrey Axelrad warns that plaintiffs’ bar-supported legislation designed to expose the manufacturers of devices approved by the Food and Drug Administration to state lawsuits would endanger the lives of Americans who rely on pacemakers, balloon stents and other life-saving medical equipment. The result of the legislation, he argues, would be a hefty payday for the trial lawyers bringing the suits.

Once again, what’s good for the plaintiffs’ lawyers is bad for everyone else, including those who need the latest medical breakthroughs to help save or improve their lives.

Federal preemption is the concept that federal law should trump state law (and state law-based lawsuits) when Congress has given a federal agency primary regulatory responsibility over a particular subject area, or when conflicts or inconsistencies arise between federal and state law. In essence, it allows for businesses to operate under one set of rules – federal rules – instead of 51 sets of potentially conflicting rules.

But consistency and stability do not make for good lawsuits, and so the plaintiffs’ bar is working to eliminate federal preemption and open the floodgates of litigation through a series of Congressional assaults, which are documented at TrialLawyerEarmarks.com.

Federal preemption limits plaintiffs’ lawyers’ ability to generate fees by bringing more state lawsuits. So, in order to further pad their pockets, they are working to convince Congress that eliminating the doctrine is in the consumer’s best interest.

Eliminating federal preemption is at the top of the plaintiffs’ bar’s 2009 wish list. That’s one reason why the issue will take center stage on October 29th during the U.S. Chamber Institute for Legal Reform’s 9th Annual Legal Reform Summit. Among other timely topics, Summit attendees will hear from a panel of national experts who will take an in-depth look at the critical issue of federal preemption and the efforts by the trial bar to eliminate it.

The U.S. Chamber of Commerce is fighting against the trial bar’s campaign to turn our economy from one that encourages a free flow of goods, into one that slows commerce and increases costs. Since most business today is not conducted in a single state, but across the country and around the globe, the federal preemption doctrine is vitally important to our integrated economy. Without it, already strapped consumers would face even higher prices.

In this economic downturn, the last thing we need is a de-centralized, fragmented regulatory framework that will heap more costs onto the backs of consumers and taxpayers – all for the benefit of a few wealthy plaintiffs’ lawyers.

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