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Congress has been busy of late considering and enacting “tort reform” laws limiting civil liability. Earlier this year, it enacted the Class Action Fairness Act, which limits the use of class actions. More recently, it has taken up measures creating immunities for certain industries, including guns (Protection of Lawful Commerce in Arms Act) and fast food (the Personal Responsibility in Food Consumption Act, known as the “Cheeseburger Bill”). Congress also has before it legislation to limit “noneconomic” damages in all civil tort suits. At the same time, Congress has left standing the tort liability shield erected for managed care organizations under the Employee Retirement Income Security Act by the U.S. Supreme Court’s 2004 ruling in Aetna Health Inc. v. Davila. When subjected to a public-interest analysis in terms of whom the shield laws protect and the impact on public safety, it becomes apparent that despite their lofty-sounding names, the shield laws represent political payoff for industry special interests that do not serve public welfare. In fact, they directly interfere in state tort law decisions about public health and safety. Obliterating state tort law in this fashion disrupts the balance of constitutional federalism. WHO GETS A SHIELD? The gun, food, drug, health and insurance industries lining up for special protection are all powerful and wealthy businesses with large investments in politicians. The wealth and power these industries wield belie the notion that the shield laws are necessary for them to survive. Nor are the industries composed of large numbers of businesses on the brink of bankruptcy or engaged in the supply of a scarce product essential to public health. As things stand, no rational justification supports shield laws protecting economically thriving sellers of handguns and fatty cheeseburgers. The shield laws enable industries to do business in any state they choose without concern that the state will use its tort law to enforce a higher standard of safety. The shield laws thus interfere with the traditional health and safety powers of the states, and invade the functions of the civil jury. Because our government is divided among 50 states and one national government, it is extremely unlikely that one political group will ever gain control of the entire governmental system. When Republicans control the nation, some states remain Democratic. When tables turn and the Democrats come into power nationally, some states remain Republican. This system helps ensure that alternative political views of the public interest remain alive, and that special interests will never be able to capture the entire government. Moreover, since we have both federal and state courts, the process of implementing the law through the courts is also decentralized, helping to guarantee that no single interest exercises undue influence. The current national tort reform measures pose grave challenges to this system. Consider the legislation immunizing the gun industry from liability to victims of gun-related violent crime. Some argue that the gun industry is not responsible for criminal gun violence because the true cause of that violence is the criminals themselves. Others, however, might conclude the issue is not so simple. In our crime-ridden society, gun manufacturers should exercise stricter control over marketing guns to potential criminals, and they ought to design firearms with “signature” safety devices that prevent them from being used by anyone other than their lawful purchasers. In this view, if the manufacturers fail in these duties, with the result that their products get into criminal hands and are used in violent crimes, they ought to share responsibility for compensating victims. Under traditional federalism, the competing arguments about gun manufacturer liability eventually would be resolved through interaction among state legislatures, courts and juries. The process is gradual, with high levels of local participation. Because of different state approaches, we would eventually reach a better understanding of how to balance consumer interest in access to firearms with the public interest in deterring violent crime and compensating victims. Eventually, we might learn whether manufacturer liability does or does not bring about less gun-related crime, and whether it is fair to ask the gun industry (and its consumers) to compensate innocent victims of gun-related crime. In the 1970s, the nation faced a potentially devastating pandemic of “swine flu.” To ensure adequate supplies of vaccine, Congress passed laws immunizing the vaccine manufacturers from potential liability for unforeseen side effects. But in that situation Congress had a specific, emergent, national reason for providing tort immunity. More important, Congress provided a compensation fund for individuals who were harmed by receiving the vaccine. While this is a better approach, even such a balanced program of immunity, coupled with alternative compensation, in the interests of federalism, ought rarely to be used. Frank M. McClellan and Mark Rahdert are professors of law at Temple University James E. Beasley School of Law.

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