Fifty FDAs: An Argument for Federal Preemption of State Tort Law that is Less than Meets the Eye




Goodwin, James
Shudtz, Matthew
Shapiro, Sidney A.
McGarity, Thomas O.
Funk, William
Buzbee, William W.

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A white paper whose purpose is to try to put to rest the “unhelpful and disingenuous” “50 FDAs” argument that proponents of federal regulatory preemption have supported for the last few decades. First, this paper examines the “50 FDAs” argument in greater detail, with an eye toward understanding the concerns that have motivate manufacturers of drugs and medical devices to adopt this argument. Second, it explains why the “50 FDAs” argument should be rejected. Third, it argues that preemption of state tort law would ultimately be counterproductive, since the displacement of a vibrant state tort law system would greatly undermine the valuable role that state tort law plays in U.S. governance.

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