Preemption/ Federalism

While the states play an important role in our country’s legal system, the U.S. Constitution grants the federal government limited but essential authority to preempt certain state laws. This federal preemption benefits the U.S. economy by reducing lawsuit abuse, ensuring strong, uniform health and safety standards, as well as providing a consistent and fair legal climate for businesses across the United States. read more...

Preemption of certain state laws improves the climate for businesses, both large and small, by ensuring consistent, uniform national standards. The efficiency savings from preemption are passed on to consumers through reduced prices and increased access to lifesaving and life-improving products. Preemption also allows knowledgeable federal regulators to establish and enforce important uniform health and safety requirements for regulated products. 

On the other hand, in policy areas where federal preemption is limited, businesses are potentially subjected to a confusing and inconsistent patchwork of state and federal laws. In such an environment, plaintiffs’ lawyers are able to exploit inconsistent standards to bring cases in lawsuit-friendly states. Simply put, plaintiffs’ lawyers support eliminating preemption because it would allow them to file more lawsuits.

Eliminating preemption would also hamper a free, nationwide market for goods and services. This was one of the major goals of the Founding Fathers when they adopted the U.S. Constitution, which explicitly allows Congress to regulate commerce “among the several states.”

For these reasons, Congress should reject legislation that would eviscerate federal preemption in areas such as food and drug safety, auto safety, and financial regulations.

 

Research

Constitutional Constraints: Provisions Limiting Excessive Government Fines

October 27, 2015 | This paper outlines the constitutional constraints that limit excessive and duplicative government fines and penalties, including the Excessive Fines Clause and Due Process Clause.

Legal Reform, The Framers and First Principles

October 23, 2013 | Written by former U.S. Solicitor General Paul Clement, now with Bancroft, this study lays out the constitutional powers of the states to enact legal reforms.

All Results for Preemption/ Federalism

Constitutional Constraints: Provisions Limiting Excessive Government Fines

Author: Paul D. Clement, Bancroft PLLC | October 27, 2015 | Research

This paper outlines the constitutional constraints that limit excessive and duplicative government fines and penalties, including the Excessive Fines Clause and Due Process Clause. Read More »

FDA's Generic Drug Proposal Should Have Consumers Feeling Ill

April 28, 2015 | News and Blog

Just like a bad cold that you can't quite kick, the FDA's proposal to abandon its requirement for generic drugs to carry the same warning labels as their brand-name counterparts is back. And, it should have you feeling ill. Read More »

WATCH: Washington Legal Foundation Briefing on Lawsuit-Generating FDA Generics Labeling Proposal

Author: Harold Kim | April 11, 2014 | News and Blog

The Washington Legal Foundation, in cooperation with the Generic Pharmaceutical Association and the American Enterprise Institute, held a media briefing to discuss the consequences of the FDA's proposed generic labeling requirement. Read More »

New Study Confirms: FDA Rule Would Create a Costly Lawsuit Machine

Author: Lisa A. Rickard | February 05, 2014 | News and Blog

A proposed FDA rule regarding generic pharmaceuticals would lead to costly lawsuits, according to a new study released today Matrix Global Advisors. Read More »

In the News Today - January 27, 2014

January 27, 2014 | News and Blog

Shareholders filed 238 federal securities lawsuits against American companies in 2013, the most since 2008. Read More »

In the News Today - December 4, 2013

December 04, 2013 | News and Blog

An appeals court has overturned a National Labor Relations Board decision that prevented employers from including arbitration agreements in employee contracts. Read More »

A Proposal for Higher Costs & More Lawsuits

November 11, 2013 | News and Blog

On Friday, the Food and Drug Administration released a draft regulation that would allow generic drug makers to change warning labels on their products. Read More »

In the News Today - October 29, 2013

October 29, 2013 | News and Blog

The legal tab for U.S. banks is expected to rise to $107 billion or more in the coming years. Read More »

Legal Reform, The Framers and First Principles

Author: Paul D. Clement, Bancroft PLLC | October 23, 2013 | Research

Written by former U.S. Solicitor General Paul Clement, now with Bancroft, this study lays out the constitutional powers of the states to enact legal reforms. Read More »

An Rx for Mega Lawsuits?

Author: Lisa A. Rickard | September 20, 2013 | News and Blog

Generic consumer products first appeared on store shelves in the late 1970s as a cost-conscious alternative to brand name grocery products. Today, one can buy practically anything in generic form - from tires to whiskey. Read More »

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