Lawsuit Pre-emption

No Big Mac attacks


Shouldn't people know that if they eat too much they'll get fat? Maybe, concedes John Banzhaf, a George Washington University law professor who promotes lawsuits against fast food chains. But as Banzhaf points out, tort law is no longer based on what's reasonable. Shouldn't people know that it's dangerous to use a hair dryer in the bathtub, put their hands under a running lawn mower, or drive a car before removing the sun screen from the windshield?

Given the legal environment that has generated explicit warnings about these and other obvious hazards, many members of Congress no longer trust the courts to throw out frivolous lawsuits. In April the House of Representatives approved the Protection of Lawful Commerce in Arms Act, which would block litigation aimed at holding gun makers responsible for violent crime. In June a House subcommittee held hearings on the Personal Responsibility in Food Consumption Act, which would prevent fat people from winning damages by blaming restaurants, food manufacturers, or retailers for their portliness.

Both bills have been criticized for violating the principles of federalism by interfering with cases in state courts. Defenders of the firearm bill argue that the interference is justified because litigation aimed at setting national gun control policy through the courts upsets the proper balance between federal and state authority, violates the separation of powers between the judicial and legislative branches, and threatens to infringe upon the Second Amendment.

Although the Constitution does not mention a right to buy and eat cheeseburgers, the Personal Responsibility in Food Consumption Act could be defended on some of the same grounds. Lawsuit boosters such as Banzhaf are interested not only in winning damages but in forcing restaurants to change the way they operate nationwide—by putting nutritional information on menu boards, for example. The bill's sponsors can cite the potential impact on interstate commerce as a rationale for restricting lawsuits in state courts. Since the litigation targets are likely to be national chains, the cases may end up in federal court anyway.

Constitutional issues aside, the impending parade of bills aimed at protecting specific industries from formerly laughable lawsuits does not exactly inspire confidence in our tort system. Instead of a Responsibility in Food Consumption Act—to be followed, presumably, by a Responsibility in Gasoline Consumption Act and a Protection of Lawful Commerce in Steak Knives Act—perhaps Congress and state legislatures should consider ways to encourage responsibility in litigation.