faculty focus
A Model for Products Liability Preemption catherine sharkey exposes the Supreme Court’s reliance on agencies and proposes a framework for preemption jurisprudence.
relationship between its regulation and state law tort claims; or by filing an amicus brief in a pending court case. Agencies sometimes argue that their regulations should preempt tort claims, and some times argue otherwise. What is clear is that whichever direction the agency’s thinking takes, the Court follows suit. But the Court only rarely acknowledges its reliance on an agency’s position. And when it does, its discussion of precisely why, or the extent to which, it is relying on the agency’s views is often cryptic at best. The Court only intermittently explains in these cases whether it is employing Chevron’s mandatory deference to agencies standard or, instead, some lesser amount of deference. Consequently, it is difficult to understand where these cases fall in the body of admin istrative law as it is understood today. I propose a new “agency reference model” to fill the doctrinal gap. The model serves two functions: a lens through which we might better understand what the Court has been doing for the past 16 years in its product liability preemption cases, and a prescriptive approach for the cases that it, and lower courts, will face down the road.
agency reference model
reemption is the fiercest battle in products liability litiga tion today. The stakes are high in this collision between common law tort and the modern admin istrative state. The regulation of public health and safety via tort actions falls within the traditional purview of the states. In recent decades, however, the federal gov ernment has played an increasingly signifi cant role in the regulation of products. The Supreme Court’s products liabil ity preemption jurisprudence is a small but expanding area that traces its begin nings to the early 1990s with Cipollone v. Liggett Group, Inc., and continues, most recently, through the 2008 decision of Riegel v. Medtronic. At first glance, the Court’s preemption jurisprudence in this realm is a nearly incoherent muddle. There appears to be little rhyme or reason to the Court’s decision to allow plaintiffs’ state law tort claims to proceed in some instances and to bar them at the threshold, on the grounds of preemptive federal legislation or federal agency regulations, in others.
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When the Court decides that a state law claim is preempted, it is deferring to a pre established federal regulatory policy and ensuring that that policy will be uniformly applied across state lines. In contrast, a de cision to allow a state law claim to proceed usually means that other considerations outweigh the need for a uniform policy. Is the Court the appropriate actor to de cide whether a uniform national regulatory policy makes sense? The Court might be the first to say that it is not. For a closer view of products liability preemption cases reveals an unmistak able pattern: In all but one case, the Court has adopted the position of the relevant federal agency as to whether the plaintiff’s state law claims should be preempted by that agency’s regulations. There are vari ous ways in which a federal agency might inform the Court of its position: via regu lations that are the outgrowth of formal notice-and-comment rule-making pro cedures; or, more informally, in a pream ble to a regulation that it has issued; or in an informal interpretive ruling as to the
Not surprisingly, the thorniest preemp tion cases arise where Congress has been silent as to the preemptive effect of its own legislation; where a statute it has issued says nothing—or else says contradictory things—about the relationship of that law to state law claims. When Congress enacts piecemeal legislation concerning specific products, like the Motor Vehicle Safety Act, it has been anything but clear. Typically, these statutes include broad clauses that expressly preempt any conflicting state requirement. Congress usually says that state “requirements” or “standards” are preempted, using language that has been read by some courts to include common law state tort actions. These broad preemption clauses are coupled with very broad sav ings clauses that purport to leave common law actions intact. The tall interpretive task is left to courts and to agencies. The agency reference model is an effort to clarify the relationship between these two actors, a relationship that is already firmly entrenched but one that needs direc tion and parameters, not only to provide co herence and predictability to the law in this area but also to guide courts to the optimal result in preemption cases. Under this model, courts should look to agencies to supply the data and analy sis necessary to determine if preemption is AUTUMN 2008
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