Review

If American citizens had been forced to rely solely upon federal regulators to protect themselves from asbestos exposure, we might still find ourselves routinely exposed. Republicans like to make hay about “avaricious” plaintiff lawyers, but it is precisely such lawyers, and the damage suits they bring, that have driven asbestos and so many other dangerous products out of the marketplace.

The American citizen’s access to trial by jury-taken for granted as it is-plays a salutary role in curbing corporate abuse. It should be no surprise that such access is under attack, or that the battle reached a fever pitch during the Bush years.

The assault has taken the form of a “preemption doctrine”-shorthand for the pre-eminence of federal law over state and local statutes. Tom McGarity’s The Preemption War illuminates the struggle as it plays out in the courts, in Congress, and in the federal bureaucracy.

The subject may seem arcane at first glance, but the outcome is of enormous consequence to a number of critical issues, including environmental protection, keeping hazardous drugs off the market, highway safety, food contamination, and myriad other daily concerns.

The friction is generated by conflict between the U.S. Constitution’s Supremacy Clause (“laws of the United States … shall be the supreme Law of the Land”) and the right to try civil cases by jury-a right enshrined in most state constitutions.

The book describes in chilling detail how corporate lobbyists have aided and abetted Congress and regulatory bureaucracies in erecting preemption barriers to common-law negligence lawsuits. For instance: Then-House Speaker Dennis Hastert and Sen. Bill Frist immunized vaccine manufacturers against lawsuits in what amounted to a secret midnight raid. And our old friend Tom DeLay blocked the energy bill for years as he tried to add amendments ensuring lawsuit immunity for manufacturers of methyl tertiary butyl ether, or MTBE, a groundwater-polluting gasoline additive. It has not been a pretty picture.

The U.S. Supreme Court will tell us in the next few weeks, as it decides the preemption case of Wyeth v. Levine, just how broadly Food and Drug Administration approval can immunize drug manufacturers from liability.

Every engaged citizen-not just lawyers-should read this book, if only to stay abreast of the machinations operating just below the horizon of the daily news.

McGarity, an Austinite, is a distinguished faculty member of the University of Texas Law School. In addition to his teaching and writing, McGarity helped organize, and serves as president of, the Center for Progressive Reform. He concludes, quite rightly, that “The preemption war demands immediate congressional attention … Because the war has thus far gone very poorly for plaintiffs, it is taking a tremendous toll on the common law’s capacity to provide corrective justice to the innocent victims of defective products, negligent activities, and fraudulent business practices…”

Such access to justice is one of those perks of American jurisprudence that the average citizen isn’t likely to miss until it’s gone. Once it’s gone, it’s going to be awfully hard to get back.

Dave Richards is an attorney and author.