PREEMPTION AND PRODUCTS LIABILITY: A POSITIVE THEORY

Keith N. Hylton

Boston University School of Law Working Paper 03-17

Supreme Court Economic Review, forthcoming Volume 16, 2008

(Revised April 2007)

Abstract
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.

 

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Keith N. Hylton Contact Information

knhylton@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-8959

Social Science Research Network:

http://ssrn.com/abstract_id=433661

Presentation and Publication Information:

To be announced.


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