The Preemption War: When Federal Bureaucracies Trump Local by Thomas O. McGarity

By Thomas O. McGarity

Most folks are blind to a quiet warfare that has been raging for the decade within the courts, federal regulatory companies, and Congress—a battle over federal company preemption of country universal legislations claims. however the end result of those battles will impact us all, says regulatory legislation professional Thomas O. McGarity, and shoppers stand to be the most important losers. during this complete and balanced e-book, McGarity takes up for the 1st time this more and more vital topic. He indicates how preemption impacts the best way voters are shielded from damage and corporations are held responsible for harm they unlawfully cause. The e-book deals students and policymakers an entire research of the criminal and coverage concerns lower than debate, and it brings into sharp concentration the influence of preemption at the lives of individuals occupied with real proceedings. McGarity highlights the arguments for and opposed to preemption and indicates directions for resolving tough concerns in a number of contexts.

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Extra info for The Preemption War: When Federal Bureaucracies Trump Local Juries

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The regulatory process focuses primarily on the entities responsible for subjecting society to risks and not on the potential victims. The interests of the victims are of course relevant to regulatory standard-setting, but they weigh into the standard-setting process only to the extent that harm to those interests is deemed Regulation and Liability “unacceptable” under the criteria specified in the governing statute. ”45 The loss-shifting function of the common law also operates indirectly to provide incentives to potential defendants to redesign their products or modify their conduct in ways that will avoid common law liability in the future.

7 Agencies like the Securities and Exchange Commission (SEC), the Federal Trade Commission (FTC), and, to some extent, the Food and Drug Administration (FDA) regulate the terms and conditions of various contractual relationships to ensure that unscrupulous sellers do not take advantage of poorly informed consumers. 8 With the enactment of the Pure Food and Drug Act of 1906,9 Congress also began to protect citizens from products and activities that pose unacceptable health and safety risks. Congress has empowered agencies like the FDA, the Environmental Protection Agency (EPA), and the Occupational Safety and Health Administration (OSHA) to remove unhealthful or dangerous products from the market and to promulgate standards to ensure consumer safety and a clean and healthful environment.

Congress may have valid reasons for denying injured citizens the corrective justice to which the common law entitles them. For example, Congress may decide that corrective justice is not a proper social goal in situations where private entities have complied with regulatory standards. Or, Congress may decide that some victims do not deserve corrective justice at the expense of some risk producers. Because a robust system for obtaining corrective justice is critical to a polity’s health, however, this is not a decision that Congress should make lightly, and we should not presume that Congress has delegated that critical decision to a regulatory agency that does not concern itself at all with corrective justice goals.

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