Posted by Eugene Volokh:
Federal Preemption of Some Product Liability Lawsuits, and States' Rights:
D.C. law holds manufacturers of semiautomatic guns liable when
criminals use those guns to commit crimes in D.C., even though the
manufacturers made and sold those guns entirely outside D.C. Last
week, [1]I complained about this; D.C., I argued, shouldn't be able to
impose its policy judgments on behavior in other states:
You may have the perfect right to buy such a gun in some state
(let's say Tennessee), sellers may have the right to sell it to you
there, and Tennessee-based manufacturers may have the right to make
it there, both under Tennessee law and under federal law. But
because of the actions of the D.C. City Council, the manufacturers
may find themselves having to stop selling the guns in Tennessee,
for fear of being sued in D.C. Or they may at least increase the
gun's price, which means that the D.C. City Council would have
effectively imposed a tax on what happens in Tennessee. . . .
[I]t's wrong for the D.C. City Council, which represents about 0.2%
of the U.S. population, to make rules that affect 99.8% of the
population. That's precisely the sort of burden on extra-state
behavior that Congress has the power to lift (even if the burden is
imposed by a quasi-sovereign state, rather than by the D.C. City
Council, which is directly within Congress's plenary power), and
that Congress indeed should lift.
This reasoning, of course, would apply equally to other products, such
as alcohol (which I mentioned in my original post) or whatever else.
But what about states' rights, some readers asked? Here's one message
that I got:
[A]llowing federal preemption of such [product liability] claims
would vastly expand federal power into an undisputed traditional
domain of state law -- not the kind of thing I expected a defender
of states' rights (such as yourself) to say.
My position, though, is all about protecting states' rights to govern
behavior within their own states. I do generally think that on many
(though not all) issues Oregonians should be decided what's allowed in
Oregon and Tennesseeans should be deciding what's allowed in
Tennessee. Rules of behavior in Tennessee should generally be set by
the Tennessee Legislature, not the federal Congress.
But rules of behavior in Tennessee shouldn't be set by the California
Legislature or the D.C. City Council, either. And that's precisely
what the D.C. statute that I faulted does: By imposing tort liability
on behavior in Tennessee, it operates as a tax, a regulation, or even
(practically) a prohibition on what Tennesseeans can do in Tennessee.
It's a violation of states' rights, not a vindication, for one state
to impose such regulations -- whether framed as tort liability or
otherwise -- on behavior in another state. (Let's treat D.C. as a
state for these purposes, since my call for federal preemption would
apply equally if it had been a state.) Likewise, it's a vindication of
states' rights, not a violation, for Congress to step forward to
protect the rights of other states against this sort of unilateral
imposition by D.C. law, or, for instance, [2]by California law that is
interpreted as holding Glock liable for Glock sales practices in
Washington State.
Finally, I would caution against appeals to tradition here. It's true
that most tort law has traditionally been state law; but that's partly
because historically most tort liability has involved either entirely
intrastate behavior or behavior that's largely intrastate. In
particular, I don't think there has been a long tradition of tort law
imposing liability on defendants' purely out-of-state behavior in the
first place, especially when defendants' behavior was lawful in the
state in which it took place.
Moreover, as the economy has gotten more nationally integrated,
Congress has indeed preempted state tort liability in many fields.
This is clearest in sectors that have heavily involved interstate
behavior, such as air travel; but it has happened even in areas where
much more of the behavior is intrastate, such as (in considerable
measure) labor law, employee benefits law, and more. Whether these
federal actions were right or wrong, they must surely be counted when
one is deciding what's "traditional" here.
References
1. http://volokh.com/archives/archive_2005_04_17-2005_04_23.shtml#1114111634
2. http://volokh.com/2003_11_16_volokh_archive.html#106936065700403382
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
