Big Business Wants More Federal Regulation ... of Tort Rights

In the video below, Former Senator and "Law and Order" actor Fred Thompson gives us a primer and description on the virtues of Federalism and then takes a stand against those who are trying to nationalize every little activity.

Do you think that Fred was talking about the industry backed Product Liability Reform bill that would have limited tort recovery by injured victims of defective products that passed Congress and was vetoed by President Clinton?

Or perhaps he was referring to the industry backed "Personal Responsibility in Food Consumption Act" that would have placed a federal government bar on certain food injury cases This bill has been passed twice by the House of Representatives.

Or maybe Fred was thinking about the industry backed challenge to a California law against slaughtering non-ambulatory animals on the basis that the Federal Meat Inspection Act preempted state regulation.

Or Fred could have had in mind the industry backed claim that Federal law preempted state tort actions by victims of a drug company's failure to warn. Or maybe it was the industry backed claim of federal preemption of state tort claims for injury by medical devices.

The more I think about it, I think that is exactly what Fred must be talking about.

 

Guest Blogger: Henry Lowenstein - Gibbons v Ogden: Steamships, Slaves and Supremacy

Henry Lowenstein from Coastal Carolina University shares the following:

Every term I assign 4 cases for my Legal Environment of Business class for students to read the majority opinion and write a 2 page mini-brief summary.  The first one is usually a Commerce Clause case since we start the course on foundations of the law.   This year I decided to use the old war horse, Gibbons v. Ogden.

In perusing the internet I found this wonderful YouTube video which is a 35 minute dramatization of the case done by the Judicial Conference of the United States in 1977.  (The late actor E.G. Marshall introduces it).  It can be a little dry at times but I sent it to my students.

The students who took the time to watch it say they were fascinated, particularly my African-American students who had no idea of the critical linkage between the Marshall Court making this decision and the post hysteria and unconstitutional law enactments here in South Carolina following the Denmark Vesey Slave Conspiracy at that time.  Below is what I sent my students:

Dear Students:

I have heard from some of you working your way through the Supreme Court decision in the case of Gibbons v. Ogden, your first case assignment coming up shortly.

For those of you interested I draw your attention to an outstanding 35 minutes dramatization of this case on YouTube at the following site:  http://www.youtube.com/watch?v=QGTkRP4v8tM

This program, commissioned by the Judicial Conference of the United States in 1977, covers the issues and deliberations Chief Justice John Marshall and the then 7 member justices faced and how they ultimately crafted the unanimous decision you are reading.   Note as you watch it, the similarity between the issues and concerns then with what you hear in today's public debate on the role of the Federal government and its regulation of commerce.

What you may find more fascinating, is that the Court took this case as a legal linkage in dealing with events of the time happening in Charleston, South Carolina; the Denmark Vesey Slave Revolt Conspiracy of 1822 and its aftermath. That event led to a cruel and inflexible state law governing seamen passed by South Carolina which many felt impeded commerce.  One of the Justices, sitting as presiding Federal Judge over the region declared the South Carolina law unconstitutional. This helped push Chief Justice Marshall and the full Supreme Court to strongly affirm Federal supremacy over interstate commerce in Gibbons v. Ogden to deal with both situations.

I hope you will find this helpful, interesting and the acting superb.

Henry Lowenstein, PhD
Professor of Management and Law