Preemption and Products Liability : a Positive Theory
نویسندگان
چکیده
In a large number of products liability lawsuits, sellers assert that plaintiffs’ claims should be rejected because their products fall under some federal regulatory regime, and that the regulatory statute takes precedence over or “preempts” state tort law. This paper is an attempt to set out a positive theory of the doctrine on preemption of products liability claims. The federal case law is largely consistent with an approach that seeks to minimize the costs of erroneous decisions to preempt tort lawsuits. In particular, two factors explain many of the outcomes of the preemption cases in federal courts: agency independence and the degree of congruence between the regulatory and common law standards. Boston University School of Law, [email protected]. Earlier drafts were presented at the 2003 AALS Conference on Torts, University of Illinois, and Boston University. I thank Jack Beermann, Nancy Moore, Ingo Vogelsang, and David Walker for helpful comments on earlier drafts. I also thank Fei Deng, Jessica Selb, Shafaq Islam, and Yulia Rodionova for research assistance.
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