Cindy Skrzycki, who writes a column on regulation in The Washington Post, today delves into the “stealth” campaign by the Bush Administration to write regulations that make it more difficult for the aggrieved — read, trial lawyers hired on contingency — to sue in state courts. So stealthy is this effort that Skrzycki details it in her piece, “Trial Lawyers on the Offensive in Fight Against Preemptive Rules.”
She notes the FDA has written federal pre-emption language into its rules, and goes from there.
“We are generally heartened by such rules,” said Darren McKinney, a spokesman for the American Tort Reform Association [ATRA], which has about 300 businesses and trade associations as members. “Regulatory experts are better arbiters of what is a potential threat to a consumer than a judge or jury in Michigan.”
Since 2005, federal agencies, including the Consumer Product Safety Commission, the National Highway Traffic Safety Administration and the Department of Homeland Security, have issued more than a dozen rules that stress the primacy of federal law.
That plaintiff bar’s talking points that this is some sort of conspiracy or enactment of a hidden agenda are nonsensical. What’s going on is quite simple: We’re seeing the results of two national elections that placed a certain governing philosophy in charge of federal regulations, a philosophy that is not always immediately hostile to the effective functioning of the free market.
That philosophy recognizes that a federal regulatory regime is often more appropriate for goods, services and activities involving interstate commerce. That philosophy is also grounded in real-world experience, which has proved time and again that some state and local courts become captive of the trial bar, creating “judicial hellholes” — that’s ATRA’s terminology — that hand out outrageous awards for the most outlandish of legal claims.
Stealth? Nope. Good government, one that discourages legal abuses that give the United States the most expensive legal climate in the world in which to do business.
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