Martin Kotler, ‘Tort Reform and Implied Conflict Preemption ‘

“… The Article will proceed as follows: in Part II, after reviewing, in somewhat summary fashion, the twists and turns of products liability law since the adoption of 402A in 1965, we turn to the question the current understanding of the function of imposing liability for defectively designed products. Somewhat more specifically, the section traces design-defect theory from instrumentalist strict liability to negligence liability (with a focus on the assignment of personal responsibility to others) to the current trend toward the formulation of instrumentalist no-liability rules. It is within the context of the current trend of “no-liability” that the implied preemption doctrine has been brought to bear to threaten tort law. In Part III, the Article takes up the recurrent problem of the legislative power to abrogate common-law tort liability, federalism concerns, and implied preemption. In that context, it seeks to analyze and explain impossibility conflict preemption, frustration of federal purpose preemption, and to distinguish the latter from field preemption. Part IV, looks to the Consumer Product Safety Commission’s regulation of disposable lighters and the cases finding and refusing to find federal preemption, and seeks to illustrate not only the common confusion between implied conflict preemption and the statutory or regulatory compliance defense, but, more importantly, to make clear the unworkability of implied conflict preemption as currently understood. Additionally, the Article seeks to explicate the third type of conflict preemption, a distinction the Cipollone plurality and subsequent Court decisions largely ignored. Nevertheless, if conflict preemption is limited so as to exclude substantive frustration conflicts, many concerns can be eliminated …”


Martin A Kotler, Tort Reform and Implied Conflict Preemption, 44 John Marshall Law Review 827 (Summer, 2011).

First posted 2012-02-18 13:55:47

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