Tom's point about the use of myths to drive the tort reform agenda is a powerful one. But this battle is about more than myths about torts; it is also a battle about myths about constitutional law.
In most of the tort suits that trigger preemption defenses, there is no plaintiff whose story is susceptible to ridicule. Tort cases are almost invariably brought by people who jurors, once they hear the plaintiffs' stories, sympathize with --- which is why defendants are so leery of letting tort cases get to juries in the first place.
That is why preemption isn't just the defense du jour --- a fad that will soon pass. It is a door-closing device that shuts the courthouse door to injured parties, ends the case before plaintiffs and their lawyers can engage in discovery, and spares the defendant both the costs of defending the case and the possibility that the plaintiffs and their lawyers will get access to all of those emails and internal memorandum that, in many cases, prove the defendants' culpability.
The Administration's carefully planned and well-orchestrated effort to use regulatory preemption as a way of conferring broad immunity from tort litigation is …