Products Liability Preemption: An Institutional Approach
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Description
Preemption is the fiercest battle in products liability litigation today. The stakes are high in this recent manifestation of the collision between common-law tort and the modern administrative state. In the legal academy, the conventional take on preemption frames the question theoretically as a pure matter of either statutory interpretation or congressional intent. To be sure, with the stroke of a pen Congress could definitively determine when its product regulations displace state common law. Instead, Congress repeatedly punts, leaving unresolved the key question of the extent to which federal standards and regulations preempt state common-law remedies. Products liability is a realm in which Congress typically either says everything—coupling broad preemption provisions that would seem to wipe out competing state tort claims with broad “savings clauses” that would seem to preserve those same actions—or nothing at all. Moreover, Congress tends to legislate in a decidedly piecemeal fashion. Instead of comprehensive national products legislation, Congress regulates select product areas in which it typically focuses on the liability side, fashioning federal safety standards and requirements, and all but ignores the remedial side, including private enforcement mechanisms. A new approach to products liability preemption must highlight the issue’s institutional dimension: when Congress punts, courts and federal agencies vie to fill the interpretive gap. A modern take must also recognize that products liability preemption is multidimensional, involving layers of legal and policy issues—from the determination of the optimal regulatory sphere (national or state), to federalism issues, to the level of deference accorded agency determinations. Questions about the proposed preemptive effects of federal legislation above and beyond the customary and usually inconclusive inquiry into legislative intent must be posed (and answered). I advance an “agency reference model” for judicial decisionmaking in products liability preemption cases: courts should look to agencies to supply the empirical data necessary to determine whether a uniform federal regulatory policy should exist—as agencies are in the best position to gather and evaluate data—and to make informed choices regarding the welfare of American public. It may well be that the search for any global solution to the problem of the optimal regulatory level for products in an increasingly national (indeed international) market economy will be in vain. But a wealth of empirical evidence, furnished by federal regulatory agencies, can aid a more particularized search. Behind agency decisions to regulate or to refrain from regulating is a rich body of empirical cost-benefit (or increasingly risk-risk) analyses. These analyses made by the agency at the time of its action (or inaction), as well as the nature of the agency action and the contemporaneous reasons given by the agency to justify it, can guide courts’ judgments regarding the need for, and equally significantly, the present feasibility of, uniform national regulatory standards. This institutional approach departs from conventional preemption analysis with its focus on formal doctrinal categories and from the “presumption against preemption” interpretive canon, which directs courts to construe statute not to preempt, absent a clear statement by Congress to the contrary. Instead, it places federal agencies front and center in a realm in which they have often lurked just out of focus. . . . [M]y particular focus is the functional analysis that provides content to (or, at a minimum, complements) any interpretive exercise, whether court or agency.
Source Publication
Foundations of Tort Law
Source Editors/Authors
Saul Levmore, Catherine M. Sharkey
Publication Date
2009
Edition
2
Recommended Citation
Sharkey, Catherine M., "Products Liability Preemption: An Institutional Approach" (2009). Faculty Chapters. 1767.
https://gretchen.law.nyu.edu/fac-chapt/1767
