Supreme Court Preemption: The Contested Middle Ground of Products Liability
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Description
Preemption cases are generally described as a “muddle,” seemingly defying attempts at categorization. While the cases fit uncomfortably into the high-voltage area of federal-state relations, they do not lend themselves to the easy liberal or conservative framework that typifies discussions of the Eleventh Amendment and sovereign immunity. Moreover, since preemption is invariably invoked to defeat a state law claim asserted by a plaintiff, the effect of preemption would seem to be most appropriately analyzed as an effective weapon in the defense arsenal in an era increasingly hostile to recovery in the courts. We offer a different take on preemption, focusing primarily on the most difficult cases in which Congress has sought to regulate a discrete aspect of nationwide economic activity rather than seeking to regulate an entire field or, alternatively, leaving regulation in the hands of the states. Our best examples come from the universe of cases that concern products liability, where Congress has often sought to define the regulatory standards that products must meet while leaving intact the background state tort law for remedies. Rather than standing alone as strange outliers in the contested terrain between federal and state regulation, these preemption cases occupy a difficult middle ground. At one pole are the areas of law that Congress has sought to capture altogether, such as under Employee Retirement Income Security Act (ERISA) or Copyright Act. In these areas of “field preemption,” the statutes typically announce the exclusive sway of federal law and typically provide for exclusive jurisdiction in the federal courts as well. At the other pole stand the dormant Commerce Clause cases, typified by a judicial determination that Congress’s silence as to both substantive law and federal jurisdiction should nonetheless be seen as an exercise of federal power to keep states from regulating in a discriminatory fashion. The products liability cases present themselves as a particularly propitious area of inquire in which two of the great themes in preemption law come together. Because tort law is so thoroughly a traditional area of state governance, the federalization of this branch of the common law threatens a serious reallocation of power in our delicate system of dual sovereignty. At the same time, the sweep of the market for products undermines any realistic sense that the individual states are the optimal level of regulatory authority for what is increasingly an undifferentiated national, and indeed international, market. Products liability preemption cases thus form a natural environment, for a hesitant federalization of American law. When applied properly, preemption can foster predictability in the manufacture of products and permits princes to be set in anticipation of known liability risks. We contend that despite the common law origin of products liability law, the unmistakable evolution has been toward the development of national law for a national market. By examining the tort-based preemption cases that have come to the Supreme Court in the past two decades, we demonstrate how the Rehnquist Court, contrary to its billing as a proponent of state autonomy from federal regulation, was actually a critical ally in expanding the reach of federal law. Further, and contrary to the more facile political explanations of the Court’s behavior and to the claim that all is hopelessly muddled, we contend that the Court is highly attentive to two problems that ultimately drive its move toward “federalization,” the term we apply to the nationalizing impulse in this area of law. The first is the need for coordination among the states. In the absence of federal regulation, it is difficult for anything from safety standards to environmental impact to be addressed comprehensively. Absent coordination, there is the risk that states with the greatest taste for regulation or with disproportionate liability rules will come to define the product market, regardless of the overall efficiencies or fairness of the rules they set. Second, there is the risk of predation when states use their power to impose liability or even assess punitive damages on out-of-state enterprises whose long-term viability may be of insufficient concern to them. Our approach draws in part from a broader study of the way in which the jurisprudence of expanding federal substantive law and expanding federal jurisdiction over state law matters work in tandem to frontload the work of the federal judiciary as a federalizing agent for national market concerns. We have examined a range of preemption cases decided by the Rehnquist Court to discern a trend, over the long haul, in the direction of reading the claims of congressional authority broadly and correspondingly narrowing the field for permissible state conduct. While our sample is necessarily partial, the overall long-term trend is sufficiently compelling to mute overblown claims to antipathy to regulation.
Source Publication
Federal Preemption: States' Powers, National Interests
Source Editors/Authors
Richard A. Epstein, Michael S. Greve
Publication Date
2007
Recommended Citation
Issacharoff, Samuel and Sharkey, Catherine M., "Supreme Court Preemption: The Contested Middle Ground of Products Liability" (2007). Faculty Chapters. 1770.
https://gretchen.law.nyu.edu/fac-chapt/1770
