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Chris Nace
Chris Nace
Attorney • (202) 930-0292

Midnight Regulations Lead to Back-Door Tort Reform

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The Bush Administration is doing everything it can to protect the business community from being held responsible for injuring individuals:

WASHINGTON—Railroad companies later this month will be immune from state tort lawsuits under a so-called "midnight regulation" that the Transportation Safety Administration has adopted.

Even in this economic climate where business are relying on individual taxpayers more than ever to run their businesses, President Bush is trying to protect those businesses from having to compensate taxpayers who they injure through their own negligence.

This is just another effort by the Administration to "pre-empt" lawsuits brought by individuals.

The rule is based on the premise, adopted by the Bush administration in numerous other regulations, that state tort lawsuits are impliedly pre-empted by federal law. Implied pre-emption occurs when Congress does not expressly pre-empt a state tort action but when allowing a tort claim would appear to conflict with congressional intent.

In other words, the Bush Administration has passed regulations, without Congressional approval, that make it difficult, if not impossible, to hold a corporation responsible for its negligence if that corporation has followed some vague, regulation that was never passed through Congress.

Simply put, this is an end-run around the legislative process and an effort to allow corporations to avoid liability for their dangerous actions.