When you read almost daily of all the corruption and scandals that take place in Corporate America, you have to wonder why anybody would want to attack our court system. Nevertheless there are some amongst us who do and who are totally dedicated to their cause. As previously reported, those powerful forces behind the movement to destroy the American jury system are attempting to use federal regulatory agencies to do their dirty work. To accomplish their purpose, they are getting these federal agencies to draft preemptions barring state lawsuits, and then to put them in the preambles of agency rules and regulations. The preemptions of state laws have now been written into the preambles of:
• the Food and Drug Administration’s new drug-labeling rule;
• the Consumer Product Safety Commission’s mattress-flammability rule; and
• a pending National Highway Traffic Safety Administration regulation on motor vehicle roof-crush standards.
It must be remembered that the preambles are introductory opinions that do not have the force of law. It’s obvious that by adding the preemptions, however, federal agencies are attempting an end-run around Congress. Things that could never get through Congress are now being put into federal regulatory rules and regulations with a hope that some court will say that is permissible and apply preemption to claims in lawsuits. It has become quite obvious that federal preemption is the main thrust of the Bush Administration’s tort reform agenda. Ira Rheingold, general counsel to the National Association of Consumer Advocates in Washington, observed that preemption is one of the quiet ways that banks and other industries are trying to insulate themselves from consumer tort claims. The American public would never tolerate this, but unfortunately few folks ever know about what’s going on.
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