In a Supplement to the Court’s April 10, 2008 Order, Judge Wilson took pause to consider the broad implications of preemption: “The thought underlying expansive preemption (‘backdoor federalization’) is that bureaucratic experts are better at determining what is reasonable, what is too dangerous, etc., than are juries. Over the past several years I believe that all three branches of government have become more and more distrustful of juries. They seem to forget that juries are a cross-section of citizens who elected them to office (or elected those who appointed them). In political campaigns these citizens are paragons of virtue; but when they are called for jury service, they somehow become incapable of making important decisions. The language in the decisions favoring preemption is high flown; but, at bottom, it reflects distrust of the randomly selected citizens who sit on juries. Perhaps our public officials, including judges, have read too much Plato and too little Alexis de Tocqueville. Trial by jury is the essence of government reposed by the people. We should trust this institution in fact, not just in word.” See in re Pempro Products Liability Lit., MDL No. 1507 (E.D.Ark. April 16, 2008).
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