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Obama Reverses Bush's Long Attack On States' Rights

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  • Obama Reverses Bush's Long Attack On States' Rights


    ***** PRESS RELEASE*****

    President Obama Initiated a Sweeping Reversal of the Deterioration of State Common Law Rights Under The Bush Administration and Provided a Victory in the Legal Arena of Preemption for All Working Men and Women

    From now on, the regulatory preemption of state common law will be strictly limited. Even regulations issued within the past 10 years will have to be reviewed and in some cases amended.

    On Wednesday, May 20, 2009, President Obama issued a Directive to the Heads of all Executive Branch Departments and Agencies stating it is the policy of his Administration that “preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” Preemption of state common law will no longer be presumed or asserted by regulatory agencies absent “explicit preemption by Congress or an otherwise sufficient basis under applicable legal principles.”

    In order to ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis, the President’s directive provides that:

    "1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.
    2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption…;

    3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.”;

    The effect of President Obama’s directive is enormous. For the last 10 years there has been a deliberate movement towards undermining state law negligence and product liability claims by the Bush Administration. This is due by a large part on legislation or regulations that have been promulgated under the Bush administration that would contain language similar to to the following: “These rules are established and are intended to pre-empt and state claims…..” Hence, the courts would be duty bound to follow the language. Obama’s new directive is significant as it orders ALL agencies to go back and change this language unless there is a valid reason to have pre-emption. This is huge as drug companies, car manufacturers, child seat manufacturers, cigarette companies, medical device manufacturers, seat belt manufacturers and on and on all would always rely on “pre-emption” as a defense. This is true even though there was usually no real in depth analysis done by the federal entities charged with determining whether the products at issue were defective or not. For instance, if the FDA said a drug’s warnings complied with the FDA requirements of that drug, then no one could sue under a state claim alleging inadequate warnings.

    This represents a large victory for the citizens of the United States as it gives back their common law state rights and is as a result of the hard work of the American Association for Justice.

    Gordon & Elias, LLP, represents clients in all aspects of personal injury and wrongful death. They are a boutique law firm with a nationwide practice focusing on Jones Act Claims (Jones Act Lawyer | Maritime Injury Attorney, Houston, Texas, Offshore lawyers, Admiralty Attorneys), FELA claims (FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident) and a Nationwide practice in Truck Accident Litigation (Welcome | Gordon & Elias L.L.P. |). Gordon & Elias, L.L.P., was formed in 2000. Attorneys Steve Gordon and R. Todd Elias bring over 39 years of combined experience to the representation of their clients. The firm has the experience and resources to pursue recovery from large corporate defendants and/or their insurers
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    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
    FELA Lawyer
    FELA Lawyer Blog
    Serving Injured Railroad Employees Nationwide
    Call for a FELA Lawyer 24/7/365
    800-773-6770

  • #2
    and the cleanup continues. it's gonna take a pretty big mop & bucket to get it all, though.
    -sigpicLet's All Hunch!

    Comment


    • #3
      Originally posted by Hog&Tow View Post
      and the cleanup continues. it's gonna take a pretty big mop & bucket to get it all, though.
      It cant be done in 4......He sure was a . I thought we were doing good to get rid of him as Governor...little did we know!
      Steve Gordon
      Gordon, Elias & Seely, L.L.P.
      FELA Lawyer
      FELA Lawyer Blog
      Serving Injured Railroad Employees Nationwide
      Call for a FELA Lawyer 24/7/365
      800-773-6770

      Comment


      • #4
        This is true even though there was usually no real in depth analysis done by the federal entities charged with determining whether the products at issue were defective or not. For instance, if the FDA said a drug’s warnings complied with the FDA requirements of that drug, then no one could sue under a state claim alleging inadequate warnings.
        This appears to say that the Federal agencies are a failure at doing their job (im so shocked).
        If this is the case, then why not just obolish them and shrink the Fed govt a bit. I somehow doubt this is the intention.
        All postings by BadOrderKing are public information, works of fiction, sometimes resembling the rants of a madman and in no way should be construed to represent the positions, views, or thoughts of any particular railroad carrier. No one listens to him anyway.

        Comment


        • #5
          Tort Reform....Or Tort Deform?

          Dear Bad Order King:

          No question about it, the agencies that are charged with the responsibility to protect the citizens from bad drugs, defective products and the like are not well funded, under staffed, over worked and the like. Plus the way, for instance, the FDA partially gets its funding from drug manufacturers is ripe for "lobbying" by corporations whose interests are the bottom line not safety of the public. However, what the Bush administration systematically was doing was taking away the opportunity to challenge these matters in courts around the land. Are trial lawyers greedy? For the most part I would say that the "big boys" in the trial lawyer industry definitely like to make money but their role is, as I see it, kind of like a check and balance. Bush's outright and expressed hatred for the trial bar was and is misplaced. Obama's reversal of this quiet, but serious, destruction of the tort system (some call it "tort reform"...I call it "tort deform") will help put back in place these needed checks and balances. The common man simply does not have the money to fight these corporations and they need trial lawyers to fight for them where greed has overridden safety concerns. Is the system perfect...hell no but it is the best in the world.

          Steve Gordon
          FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident
          Steve Gordon
          Gordon, Elias & Seely, L.L.P.
          FELA Lawyer
          FELA Lawyer Blog
          Serving Injured Railroad Employees Nationwide
          Call for a FELA Lawyer 24/7/365
          800-773-6770

          Comment


          • #6
            do you mean the "tort reform" that was attempted in order put in check frivolous law suits? Upstanding, non-greedy lawyers would take on valid basis claims of injustice for compensation if a client could not afford a lawyer. I thought the intent was to prevent crazy lawsuits and ambulance chasing. I never saw it as something aimed at squashing the rights of those who were legitimately harmed/wronged As for the drug companies supplying funds for the FDA to hire more personnel, you are right, the more drugs on the market necessitated more FDA manpower supplied by the companies. True nepotism and never understood how the federal govt allowed that to get started . . . .oh yeah, I forgot about lobbyists.

            Comment


            • #7
              Checks Are In and Should Remain In The Court System

              Originally posted by Slugo View Post
              do you mean the "tort reform" that was attempted in order put in check frivolous law suits? Upstanding, non-greedy lawyers would take on valid basis claims of injustice for compensation if a client could not afford a lawyer. I thought the intent was to prevent crazy lawsuits and ambulance chasing. I never saw it as something aimed at squashing the rights of those who were legitimately harmed/wronged....
              Dear Slugo-

              With the utmost respect, just because you did not see it does not mean that the effect of it quashed legitimate claims with frivolous claims. With something as delicate as injuries to persons, e.g., physical, emotional, financial, etc., one cannot paint with such a broad brush which is what blanket pre-emption does.

              Your point that there are some frivilous claims is well taken, however, there are many different levels where these types of filings are well handled, e.g., sanctions in the Rules of Civil Procedure and ethical complaints to the Bar referred by the Judiciary.

              Steve Gordon
              FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident
              Steve Gordon
              Gordon, Elias & Seely, L.L.P.
              FELA Lawyer
              FELA Lawyer Blog
              Serving Injured Railroad Employees Nationwide
              Call for a FELA Lawyer 24/7/365
              800-773-6770

              Comment


              • #8
                Originally posted by FELA FELLA View Post
                Dear Bad Order King:

                No question about it, the agencies that are charged with the responsibility to protect the citizens from bad drugs, defective products and the like are not well funded, under staffed, over worked and the like. Plus the way, for instance, the FDA partially gets its funding from drug manufacturers is ripe for "lobbying" by corporations whose interests are the bottom line not safety of the public. However, what the Bush administration systematically was doing was taking away the opportunity to challenge these matters in courts around the land. Are trial lawyers greedy? For the most part I would say that the "big boys" in the trial lawyer industry definitely like to make money but their role is, as I see it, kind of like a check and balance. Bush's outright and expressed hatred for the trial bar was and is misplaced. Obama's reversal of this quiet, but serious, destruction of the tort system (some call it "tort reform"...I call it "tort deform") will help put back in place these needed checks and balances. The common man simply does not have the money to fight these corporations and they need trial lawyers to fight for them where greed has overridden safety concerns. Is the system perfect...hell no but it is the best in the world.

                Steve Gordon
                FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident
                Dont get me wrong. I do see a need for trial lawyers as a "check and balance" tool. However, If the FDA is so underfunded and understaffed to the point that they fail to protect us from dangers such as bad drugs on te market, they should also be held accountable to the people for simply slapping a seal of approval on something they have not tested. To me, that is just as serious as a company that puts out an undertested drug. The FDA is who we look towards for that "nod of aproval".
                If this is meerly an attempt to open the companies up for civil liability and not hold the FDA acountable, it is nothing more than a helping hand to trial lawyers first, the people second.
                I know that defending taffic tickets is not how lawyers make their money and I wont even pretend to be a civil law shcolar, but when you can become whealthy from spilling hot coffee on you, we might have a serious problem with the system.
                All postings by BadOrderKing are public information, works of fiction, sometimes resembling the rants of a madman and in no way should be construed to represent the positions, views, or thoughts of any particular railroad carrier. No one listens to him anyway.

                Comment

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