Martin Kotler, ‘Tort Reform and Implied Conflict Preemption’

Almost twenty years ago, the Supreme Court erred in equating state products law with other forms of state regulation of potentially dangerous products. From there, it was only a short step to declare that the common – law imposition of liability could conflict with, and thus be preempted by, federal regulatory policy.

At the time, state courts and legislatures were in the process of overturning thirty years of a strict liability experiment – an experiment that had been tried and ultimately found to be inconsistent with our fundamental understanding of the circumstances under which the assignment of responsibility for accidents was to be made.

The timing could not have been worse. Because the Court did not articulate any principled basis for determining the content of federal policy, conflict preemption emerged as a means of not just reforming tort doctrine to rein in its perceived excesses, but to abolish it altogether.

This Article traces the development of these events, illustrates the problem through the example of the Consumer Product Safety Commission’s regulation of disposable lighters, and proposes a limitation to the use of conflict preemption doctrine in order to ensure that victims of negligence are not left without recourse.

Kotler, Martin A., Tort Reform and Implied Conflict Preemption (July 27, 2011). John Marshall Law Review, Forthcoming; Widener Law School Legal Studies Research Paper No. 11-21.

First posted 2011-09-03 13:17:35

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