Sometimes lawyers make things so complicated that even they don’t understand what they are trying to communicate. That may be the case when it comes to attempting to explain federal preemption. This concept was virtually unknown, even in legal circles, until events of the last year thrust it into the spotlight. Basically it’s nothing more than a shield against lawsuits against makers of government-approved products, including medical devices and drugs. When you consider that preemption would apply to prescription medicines and over-the-counter drugs, the concept becomes even more illogical. The FDA has been little more than an extension of the powerful pharmaceutical industry and the fact of approval by the agency of a drug has proved to be no indication that the drug iss safe for use. Vioxx, an FDA-approved drug, is a prime example of that without any doubt. If federal preemption had been the law no Vioxx lawsuit could have been filed.
If federal preemption is upheld by the U.S. Supreme Court it will be the most far-reaching change in the law in my lifetime. It will have been a change brought about with almost no public debate. As you should know, the Bush Administration was unable to get Congress – even with a Republican-controlled House and Senate – to limit lawsuits. So the Administration took an under-the-radar approach at accomplishing its goal of protecting corporate wrongdoers through the federal court system.
Until recently, the right to trial by jury in civil matters was a historic protection for consumers and victims of corporate abuse and wrongdoing. Now we see that constitutional right being trampled on like never before. In fact, the men who formed our Republic would turn over in their graves if they knew what the Bush crowd has done and is now trying to do to the U.S. Constitution. Federal preemption – if allowed – would be the last straw for ordinary citizens who have legitimate claims and who deserve their day in court. David C. Viadeck, a law professor at Georgetown, had this to say about the preemption issue: “This is a radical restructuring of the American civil justice system.” I totally agree with that assessment.
In its last days, the Bush Administration is having federal agencies reinterpret the laws on the books to conclude that jury verdicts in state courts would conflict with federal policy. That had never been the position taken by any previous administration including Eisenhower, Nixon, Reagan and George Bush (the father of the current president). In fact, until recently George W. Bush never took that view. This was a Karl Rove creation and one that has finally stirred up the American people as well as Congress. When folks really understand what federal preemption is they are 100% against it. This is an issue that will unify ordinary citizens like nothing else has been able to do. It’s one battle we can’t afford to lose!
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