D.C. law holds manufacturers of semiautomatic guns liable when criminals use those guns to commit crimes in D.C., even though the manufacturers made and sold those guns entirely outside D.C. Last week, I complained about this; D.C., I argued, shouldn’t be able to impose its policy judgments on behavior in other states:
You may have the perfect right to buy such a gun in some state (let’s say Tennessee), sellers may have the right to sell it to you there, and Tennessee-based manufacturers may have the right to make it there, both under Tennessee law and under federal law. But because of the actions of the D.C. City Council, the manufacturers may find themselves having to stop selling the guns in Tennessee, for fear of being sued in D.C. Or they may at least increase the gun’s price, which means that the D.C. City Council would have effectively imposed a tax on what happens in Tennessee. . . .
[I]t’s wrong for the D.C. City Council, which represents about 0.2% of the U.S. population, to make rules that affect 99.8% of the population. That’s precisely the sort of burden on extra-state behavior that Congress has the power to lift (even if the burden is imposed by a quasi-sovereign state, rather than by the D.C. City Council, which is directly within Congress’s plenary power), and that Congress indeed should lift.
This reasoning, of course, would apply equally to other products, such as alcohol (which I mentioned in my original post) or whatever else.
But what about states’ rights, some readers asked? Here’s one message that I got:
[A]llowing federal preemption of such [product liability] claims would vastly expand federal power into an undisputed traditional domain of state law — not the kind of thing I expected a defender of states’ rights (such as yourself) to say.
My position, though, is all about protecting states’ rights to govern behavior within their own states. I do generally think that on many (though not all) issues Oregonians should be deciding what’s allowed in Oregon and Tennesseans should be deciding what’s allowed in Tennessee. Rules of behavior in Tennessee should generally be set by the Tennessee Legislature, not the federal Congress.
But rules of behavior in Tennessee shouldn’t be set by the California Legislature or the D.C. City Council, either. And that’s precisely what the D.C. statute that I faulted does: By imposing tort liability on behavior in Tennessee, it operates as a tax, a regulation, or even (practically) a prohibition on what Tennesseeans can do in Tennessee.
It’s a violation of states’ rights, not a vindication, for one state to impose such regulations — whether framed as tort liability or otherwise — on behavior in another state. (Let’s treat D.C. as a state for these purposes, since my call for federal preemption would apply equally if it had been a state.) Likewise, it’s a vindication of states’ rights, not a violation, for Congress to step forward to protect the rights of other states against this sort of unilateral imposition by D.C. law, or, for instance, by California law that is interpreted as holding Glock liable for Glock sales practices in Washington State.
Finally, I would caution against appeals to tradition here. It’s true that most tort law has traditionally been state law; but that’s partly because historically most tort liability has involved either entirely intrastate behavior or behavior that’s largely intrastate. In particular, I don’t think there has been a long tradition of tort law imposing liability on defendants’ purely out-of-state behavior in the first place, especially when defendants’ behavior was lawful in the state in which it took place.
Moreover, as the economy has gotten more nationally integrated, Congress has indeed preempted state tort liability in many fields. This is clearest in sectors that have heavily involved interstate behavior, such as air travel; but it has happened even in areas where much more of the behavior is intrastate, such as (in considerable measure) labor law, employee benefits law, and more. Whether these federal actions were right or wrong, they must surely be counted when one is deciding what’s “traditional” here.
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