Academic

Closing the Courthouse Door

By Charlton Copeland

During my most recent visit home to New Orleans, my Dad and I drove to his childhood home in Silver Creek, MS.  This has become almost standard practice over the last few visits, and I really enjoy it.  I usually get to know more about my Dad during these visits with people who knew him as a young man.  During my most recent visit to Silver Creek, I visited with a cousin, with whom I had spoken about a lawsuit that she considered filing against the maker of an allegedly defective defibrillator that she believed had caused her husband?s death.  As someone who teaches administrative law, and who has an interest in the progressive possibilities of federalism, I had been following Riegel v. Medtronic, as it made its way through the Supreme Court.  The Court?s decision was announced in February.  In it the Court held that the Medical Device Act, which set up a process for FDA approval of medical devices, including my cousin?s defibrillator, preempted suits brought under state causes of action. Last summer, during a guest blogging stint on blackprof, I wrote about the Court?s decision upholding federal preemption of state attempts to regulate mortgage banks.  There I raised this as an issue that civil rights organizations, and the larger progressive community, should take very seriously.  Over a year later, I write to say, again, that the Court has closed the courthouse door to plaintiffs seeking redress for the injuries done to their loved ones by allegedly defective medical devices.  While the ?federalism revolution? is not the talk of the streets?at least not my streets?it is important to note that this so-called revolution does not seem to be working for the benefit of the unconnected.  They get all the burdens of the federalism revolution?state immunity, limited Congressional authority?and not many of the benefits.

Standing in my cousin?s living room, I read a letter from an attorney that encouraged her to lobby her congressional delegation to overturn the Court?s ruling on medical devices.  She stood there wondering what the hell was preemption, and why did it mean she could not bring an action to determine who, if anyone, was liable for her husband?s death.  Aside from the cynical answer, I don?t know that I have one for her, and the cynical answer does no more for her than that attorney?s letter.  This isn?t sexy, and this is hardly the traditional civil rights agenda item, but perhaps it ought to be.  Or am I a chump to think that federalism has anything to offer folks who seek to live beyond the reach of the tyranny of the capital class that runs our national government?

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Full post as published by BlackProf on September 10, 2008 (boomark / email).