Article by Victor E. Schwartz and Cary Silverman
After a brief review of the basics of preemption, this Article considers the public policy underlying preemption of common law claims by federal agency regulations. Next, the Article examines the recent development of preemption law, following two major United States Supreme Court decisions on preemption and President Barack Obama's instructions on preemption to heads of federal regulatory agencies. Finally, the Article notes that when the tension between federal regulations and state tort claims does not rise to the level of preemption, state law provides courts with discretion to consider the manufacturer's compliance as satisfying the common law standard of reasonable care and establishing that the product is not defective. The Article concludes by expressing concern that the recent rage against preemption in favor of litigation may lead to less safe products and place the public at risk.
About the Author
Victor E. Schwartz. Chairman of the Public Policy Group in the Washington, D.C. office of the law firm of Shook Hardy & Bacon L.L.P. He coauthors the most widely used torts casebook in the United States, Prosser, Wade & Schwartz's Torts (Victor E. Schwartz et al. eds., 11th ed. 2005). He has served on the Advisory Committees of the American Law Institute's Restatement of the Law (Third) Torts: Products Liability, Apportionment of Liability, General Principles, Liability for Physical and Emotional Harm projects. Mr. Schwartz received his B.A. summa cum laude from Boston University and his J.D. magna cum laude from Columbia University.
Cary Silverman. Of Counsel in the law firm of Shook, Hardy & Bacon L.L.P. in Washington, D.C. He received a B.S. in Management Science from the State University of New York College at Geneseo, and an M.P.A. and a J.D. with honors from The George Washington University Law School.
Citation
84 Tul. L. Rev. 1203 (2010)