Magic makes the impossible possible. Federal preemption aims at a similarly lofty goal. After all, the power to preempt a plaintiff’s state law claims is the power to transform a plaintiff’s entire case in a radical and unexpected way. For instance, a plaintiff who finds a fraud claim preempted may no longer have any prospect of recovering punitive damages or attorneys’ fees. Likewise, a plaintiff who finds a deceptive trade practices act claim preempted may no longer anticipate an automatic award of treble damages. Similarly, a plaintiff who finds a quasi-contractual claim preempted may recognize that it must live with the written contract at issue. In short, preemption can effectively take the steam out of a plaintiff’s case.

Originally published by the Transportation Lawyers Association, October 2008.