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Injuryboard has appropriately devoted the month of Halloween to teaching about one of the scariest topics for personal injury lawyers and plaintiffs: federal preemption.

Federal preemption is one of the biggest threats to personal injury claims, and yet the public knows very little about it. So "what is preemption?" My Black’s Law Dictionary (the book that every law student is required to buy, but that is never used) has the following definition of preemption:

The U.S. Constitution and acts of Congress have given to the federal government exclusive power over certain matters such as interstate commerce and sedition to the exclusion of state jurisdiction. Occurs where federal law so occupies the field that state courts are prevented from asserting jurisdiction.

Huh? What does that mean in real life? You have to love how even law dictionaries — the books that are supposed to explain things — have legalese and don’t make sense.

In reality, preemption is a doctrine based on the Constitution’s Supremacy Clause that says federal law trumps state law; if both the federal government and the state governments have a law on the same subject, then the federal government law controls.

Preemption can come in two forms. First, there is express preemption. In express preemption, the federal law specifically states that it intends to preempt state laws on the same topic. Second, there is implied preemption. In implied preemption, the statute or law doesn’t say that it’s going to preempt state law, but the courts find that the federal statute or body of law is so broad that it impliedly preempts the state law.

So far, that doesn’t seem so bad. I can hear readers asking why plaintiff’s lawyers are griping about preemption. The problem with preemption is the way that it is applied. Almost all personal injury claims are based on state law. Car wreck claims are based on state law negligence claims; claims based on defective drugs or products are based on state law negligence or product liability claims; and construction accidents are based on state law negligence and worker’s compensation laws.

In general, when preemption issues arise in personal injury claims, defendants are arguing that some federal statute or regulation preempts the state law causes of action, which means that the plaintiff can’t bring a claim. It arises in many contexts that we’ll talk about over the coming weeks.

In the meantime, if you’re interested, you can read several of my old posts that touch on preemption:

Other Injuryboard authors are writing on this topic so look for more information there also.

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