Product Liability Reform Act

the legislation primarily on preemption grounds. This is in conformity with NCSL's general policy of opposition to unwarranted federal preemption of state law. The relatively unpublicized issue of preemption is one of the most serious problems facing the nation in NCSL's view. The Congress, the federal courts, and federal administrative agencies have asserted federal authority under the Supremacy Clause in an increasing number of policy areas. In recent years, the areas free from federal regulation and reserved for state legislation have decreased

some would say dramatically.

The reach of the Commerce Clause and the other enumerated powers of the federal government are, under current constitutional doctrine, almost without limit. If we are, therefore, to preserve our federal system in which communities and states manage for themselves most of their day-to-day affairs in accord with local customs and values, then Congress must adopt a policy of restraint when contemplating the preemption of state and local laws.

Congressional restraint is particularly important in light of the U.S. Supreme Court's decision in Garcia v. San Antonio Metropolitan Transit Authority. The Garcia decision effectively limited the Supreme Court's role in protecting constitutional federalism. The Court in Garcia reasoned that it is the primary responsibility of Congress to protect the states from intrusions into their traditional domain by the federal government.

The Court in Garcia cited James Madison's assertion in the Federalist Papers that the composition of Congress and particularly the Senate was designed to imbue the national legislature with "the spirit of the states" and make it "disinclined to invade the rights of the individual states or the prerogatives of their governments." The Justices concluded that Congress must serve as "the fundamental limitation that the Constitution imposes on the Commerce Clause to protect the states as states."

The consequences of unrestrained federal preemption at the current pace are serious. As Justice Louis Brandeis said so eloquently, "Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

We are currently in a period of experimentation in state tort law and insurance regulation. The causes of the liability insurance crisis are not completely understood. I have already listed some of the tort reform and insurance regulation experiments in the states. I would urge you not to cut short these experiments before we have a chance to learn how best to bring down the cost of liability insurance while preserving individual legal rights.

As members of the Senate you are leaders of the national government, but you also represent your states. In a very real sense, after the Garcia decision, you are their ultimate protectors. We urge you to fulfill this historic role by adopting a policy of restraint and declining to preempt state product liability law.