Photo of Bexis

We’re kicking back today and letting others do the work for us.
Generally, practitioners don’t read the law reviews. So we’re skimming the tables of contents for you.
Today’s post simply describes four recent scholarly articles — two on preemption, one on post-sale duties to warn, and one theorizing about how tort law should be coordinated with non-tort regulatory standards — that may tickle your fancy.
If none of those topics grabs you, come back tomorrow; we’ll understand.
First, Professor Robert Rabin, of Stanford, offers “Territorial Claims in the Domain of Accident Law: Conflicting Conceptions of Tort Preemption,” slated for publication in the Brooklyn Law Review. Here’s the abstract:
“Beginning in 1992, with the landmark decision in Cipollone v. Liggett Group, Inc., the U.S. Supreme Court has decided a burgeoning number of preemption cases, squarely challenging the continuing vitality of tort in many domains of accident law. Cipollone addressed the preemption question in an atypical context. The case did not involve competing claims to territorial authority between a regulatory regime and state tort law. Rather, Cipollone involved a challenge to the continuing viability of tort in the face of statutory directives mandating explicit industry conduct; more specifically, the explicit warnings required in the 1969 version of the cigarette labeling act.
“In this article, I begin by revisiting Cipollone to reassess what it has to offer as a foundation for setting the boundaries of regulatory containment of the tort system. Next, I discuss three leading cases from the series of efforts by the Supreme Court to grapple with express preemption clauses in a variety of regulatory schemes. Against this backdrop, I then explore the circumstances under which it might be justified to imply preemption despite the absence of an express provision, with particular reference to the recent Supreme Court decision in Wyeth v. Levine, addressing preemption in the context of FDA regulation of prescription drugs. A concluding note ties the strands together.”
Next, Douglas G. Smith, of Kirkland & Ellis, on a subject dear to our hearts: “Preemption after Wyeth v. Levine” — slated for publication in the Ohio State Law Journal:
“This Article addresses the Supreme Court’s recent preemption decision in Wyeth v. Levine. In Wyeth, the Court held that the Food and Drug Act did not preempt a state law tort suit alleging that the labeling for an anti-nausea medication, Phenergan, failed to adequately warn about the risks associated with IV-push administration of the drug. Already, Wyeth has been interpreted by some as sounding the death knell for the preemption doctrine in the context of pharmaceutical products. However, a careful analysis of the Court’s decision indicates that this is far from the case. The majority underscored that its decision was a ‘narrow’ one based largely on the facts and circumstances before it. In particular, the Court made a point of noting that the record was devoid of evidence that the particular risks at issue had actually been considered by the FDA and that the defendant had thus failed to show that there was an actual conflict between FDA regulation and the state law tort suit. The majority’s analysis therefore suggests that state law tort suits based on an alleged failure to warn are preempted in cases in which the FDA has specifically considered the particular risks at issue and has determined that the pharmaceutical product’s labeling adequately warns of those risks. I argue that the ruling thus construed has significant benefits. As the Court has repeatedly recognized, there is an inherent tension between the congressional establishment of a federal regulatory regime for the labeling of pharmaceuticals and medical devices by experts at the FDA and allowing a jury of ordinary citizens with no specialized expertise to render their own judgment regarding, and in effect overrule, such expert determinations. As several members of the Court have noted, there is a potential danger in allowing these expert decisions to be undermined by state court juries. Moreover, such an outcome may have undesirable indirect effects, such as raising the prices of pharmaceutical products to satisfy state court judgments that are not warranted based on the best available scientific evidence and the potential confusion and inconsistency that may result with juries in fifty-two separate jurisdictions imposing different standards concerning what constitutes appropriate labeling. The Court’s decision properly balances these competing considerations.”
Third, Kenneth Ross and J. David Prince, of both academia and the Products Liability Prof Blog, who link through to a pre-publication copy of “Post-Sale Duties: The Most Expansive Theory in Products Liability.” There’s no abstract, but the introduction tells us:
“This Article provides an overview of the Restatement (Third)’s
post-sale duty sections. In addition, it discusses relevant case law and the
impact of the Restatement (Third) on developing case law. Part II
provides a background of the post-sale duty sections of the Restatement
Parts III-IX look back to case law prior to the Restatement
and analyze how courts at that time dealt with post-sale duty
issues including negligence standards, post-sale knowledge, defect
timing questions, identification of product users, the duty to inform of
safety improvements, and the duty to recall. Part X examines case law
decisions that post-date the Restatement (Third)’s drafting, divided
according to whether the court accepted, rejected, or adopted some
variation of the Restatement sections. And lastly, Part XI provides a brief
discussion of regulatory post-sale duties.”
Finally, Professor Kyle D. Logue of Michigan on “Coordinating Sanctions in Torts.” Again, the abstract:
“This Article begins with the canonical law-and-economics account of tort law as a regulatory tool, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this regulatory picture of tort law, the Article asks the question how tort law should coordinate with already existing non-tort systems of regulation. Thus, for example, if a particular activity is already subject to extensive agency-based regulation, regulation that already addresses the negative externalities or other market failures associated with the activity, what regulatory role remains for tort law? Should tort law in such cases be displaced or preempted? The answer is: It depends. Sometimes, even in the presence of overlapping non-tort regulation, there is a regulatory role that tort law can play, sometimes not.
“For one example, if the non-tort regulatory standard is already ‘fully optimizing,’ in the sense that the regulatory standard (a) sets both an efficient floor and an efficient ceiling of conduct and (b) is fully enforced by the regulatory authority, then tort law arguably should be fully displaced in the sense that no tort remedy should be available for harms caused by such an activity. If, however, the regulatory standard is only ‘partially optimizing’ (for example, it is only an efficient minimum or efficient floor or it is only partially enforced), then tort law continues to have an important regulatory role to play.
“This framework can be used to explain such tort doctrines as negligence per se and suggests circumstances in which there should be a corollary doctrine of non-negligence per se. It also helps to explain recent federal preemption cases involving overlapping tort and regulatory standards. Finally, the framework produces insights for how tort law might efficiently be adjusted to coordinate with overlapping social norms, which are also considered within the L&E tradition to be a form of regulation.”
That’s a pretty long post today, and we didn’t do very much work at all.
We’re thinking of this as a vacation day, and we’ll be back with a more substantive post shortly.