Thomas McGarity

  • May 1, 2015
    Guest Post

    by Rena Steinzor and Thomas McGarity, past presidents and founders of the Center for Progressive Reform. Steinzor is a professor at the University of Maryland Carey Law School, and McGarity is a professor at the University of Texas Law School. Steinzor is author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction. McGarity is author of Freedom to Harm: The Lasting Legacy of the Laissez Faire Revival.

    With the announcement that GM Chief Executive Officer Mary Barra received the outsized compensation of $16.2 million in 2014, what should have been a year of humiliation and soul-searching for that feckless automaker instead ended on a disturbingly self-satisfied note.  Purely from a public relations perspective, Barra worked hard for her money.  Appearing repentant, sincere, and downcast, she persuaded star-struck members of Congress that the company was committed to overhauling a culture characterized by what she called the “GM shrug,” loosely translated as avoiding individual accountability at all costs.  Even as she blinked in the television lights, GM fought bitter battles behind the scenes to block consumer damage cases and exploit corporate tax loopholes.

    Largely on the basis of her political adeptness, Barra has been taking victory laps in the business press, hailed as the rare (female) CEO who has led her corporation out of a morass that could happen to anyone.  This performance and the accolades it inspired provide a troubling coda to what was a destructive year for American drivers.  Dubbed “the year of the recall,” automakers recalled an unprecedented 64 million vehicles ‒ about one in five cars on the road; GM led with 26 million of this total.

    To restore justice to GM’s beleaguered customers – and the scores of families who lost loved ones in crashes caused by the defective switch – we can only hope that the Justice Department’s criminal investigation of the company and its senior executives results in prosecutions that could offset the unjust favors the legal system is already prepared to bestow.

  • July 19, 2012
    Guest Post

    By Thomas McGarity, the Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law, University of Texas School of Law; McGarity is also a Member Scholar of the Center for Progressive Reform


    The Occupational Safety and Health Act of 1970 is one of the surviving monuments of the era of progressive social legislation (extending from the mid-1960s through the mid-1970s) during which Congress enacted the nation’s foundational health, safety and environmental laws. That statute empowered the Occupational Safety and Health Administration (OSHA) to write safety and health standards designed “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” A separate “general duty clause” required every employer to provide a workplace that was “free from recognized hazards” that were likely to cause “death or serious physical harm.”

    During the ensuing four decades, OSHA’s efforts to implement that statute have brought about substantial reductions in workplace injuries and illnesses, but far too many workers are still hurt or killed.

    According to the Bureau of Labor Statistics, U.S. private sector employers in 2010 reported nearly 2.9 million injuries and around 200,000 workplace illnesses. The actual numbers are likely much higher because some employers underreport workplace injuries, and doctors frequently fail to inquire into the likelihood that particular diseases, like cancer, have a workplace origin. A total of 4,690 workers died on the job, which represents a fatality rate of about 3.6 deaths per 100,000 full-time employees. These rates declined slightly during the recession of 2009, but were on their way back up in 2010

    The sad fact of occupational life in the United States is that OSHA has not lived up to its potential, primarily because for the 30 of the past 40 years, OSHA has been the subject of unrelenting attacks by the business community. These attacks have rendered OSHA largely incapable of promulgating new occupational safety and health standards and only barely able to enforce existing standards the general duty clause. In 2010, the Center for Progressive Reform published a report detailing serious regulatory dysfunction in OSHA due primarily to a lack of resources, a weakened regulatory process, intrusive review by the White House, and an outmoded statute.

    Today we publish The Next OSHA: Progressive Reforms to Empower Workers,offering a wide variety of suggestions for how Congress, OSHA, and workers themselves can make the nation’s workplaces safer and healthier. I co-authored the report with fellow CPRMember Scholars Martha McCluskey, Sidney Shapiro and Rena Steinzor, and CPR Senior Policy Analyst Matthew Shudtz.

  • January 25, 2010
    Guest Post

    By Thomas O. McGarity, Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law, University of Texas at Austin & Member Scholar, Center for Progressive Reform

    The citizens of Minot, North Dakota suffered a grave injustice on January 18, 2002 when a train derailment bathed much of that small town in a toxic cloud of poisonous gas that killed one person and injured almost 1,500 others. A detailed investigation by the National Transportation Safety Board concluded that the derailment was most likely caused by fractures in temporary joints that the railroad had installed to repair the track.

    When the victims sued the railroad for damages caused by its negligent maintenance, they found the courthouse doors locked. A federal district court held that their claims were preempted by the Federal Railroad Safety Act (FRSA) of 1970, which contained a "preemption" clause that Congress enacted to prevent states and localities from enacting regulations that were inconsistent with the regulations issued by the Federal Railroad Administration (FRA), the federal agency that Congress created to protect citizens from irresponsible railroads.

    The court held that because Congress empowered the FRA to regulate railroad safety, injured citizens could not sue the railroads when they operated their trains unsafely -- whether or not they complied with FRA requirements. Other courts have issued similar decisions in cases involving train collisions, derailments and grade-crossing accidents.

    During the Bush Administration, the FRA aggressively asserted its newfound power to protect railroads by preempting state common law. A new white paper issued by the Center for Progressive Reform (which I co-authored) explores the injustice inherent in this interpretation of the statute.

    Proponents of preemption argue that the FRA is fully capable of protecting U.S. citizens without the help of juries applying vague common law standards to reach potentially inconsistent results in 50 different jurisdictions. The citizens of Minot know that's not true.