Field Preemption: Opening the “Gates of Escape” from Tort Law

Catherine M. Sharkey

The Journal of Legal Studies, 2021, vol. 50, issue S2, S27 - S52

Abstract: Framing Richard Epstein’s case for field preemption as a means of compensating for systemic errors of tort law rather than an outgrowth of his broader views on constitutional law shows that his critique of the agency reference model is overdetermined. That model incorporates principles of administrative law into courts’ preemption decision-making framework. Evidence that courts are equipped to scrutinize the administrative regulatory record in deciding whether failure-to-warn or design defect claims are preempted matters not to Epstein, given his preference for wholesale eradication of such claims. Products liability claims may be the wrong target. The rise of federal preemption stunted the evolution of more restrictive state law standards like section 6(c) of Restatement (Third) of Torts: Products Liability. Field preemption is as much to blame as expansionist products liability law for perpetuating the need for a gate of escape from poorly developed concepts of tort liability against prescription drug manufacturers.

Date: 2021
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