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November 3, 2009

Differing Views on Federal Agency Preemption of State Tort Laws Voiced at ABA Panel

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Panelists discuss federal agency preemption at the ABA Task Force on Federal Agency Preemption forum held in Washington, D.C. on Oct. 1

The _ Task Force on Federal Agency Preemption of State Tort Laws sponsored a forum on Oct. 1 that brought together diverging points of view on preemption.

The task force heard from Jeff Rosen, Chamber of Commerce Institute for Legal Reform; Paul Bland, Public Justice Foundation; John R. Kouris, DRI; Hugh Young, Product Liability Advisory Council; Collyn Peddie, American Association for Justice; Natalia Sorgente, Alliance for Justice; Randy Moss, PhRMA; and Allison Zieve, Public Citizen.

Moderated by task force Chair Edward F. Sherman, Tulane University Law School professor, the program was held in the ABA Washington, D.C. office as part of the task force’s Oct. 1 – 2 meeting.

Rosen explained that agency preemption is a “longstanding” and well-established approach to regulation, and noted his belief that federal preemption is beneficial because it takes into account a full range of factors, and analyzes excessive risks versus all risks; that it creates a unified marketplace and thus saves money; and that it provides fairness and consistency to market participants “who obey the federal rules.”

Moss added the issue of safety to the reasons of why federal preemption and intervention benefits society, using an example of childhood vaccines. Had preemption not been in place, he stated, companies would not have made such vaccines because liability risks and insurance premiums would have made them prohibitively expensive. The current example of the H1N1 vaccine was also mentioned.

Zieve, in opposing federal agency preemption, made the point that the possibility of compensation is very effective in business practices, and that the question, “What would the jury think?” gives pause to potentially unsafe products and practices.

And Sorgente emphasized that “preemption is a blunt tool” whereby “overuse can do real world harm.”

To watch the entire program, click here.

The ABA Task Force on Federal Agency Preemption of State Tort Laws was created by the association’s Board of Governors under past ABA President H. Thomas Wells, Jr. President Carolyn B. Lamm recently renewed its charter.

Learn More About:  Tort Law