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
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.
References: Add references at CitEc
Citations: Track citations by RSS feed
Downloads: (external link)
Access to the online full text or PDF requires a subscription.
This item may be available elsewhere in EconPapers: Search for items with the same title.
Export reference: BibTeX
RIS (EndNote, ProCite, RefMan)
Persistent link: https://EconPapers.repec.org/RePEc:ucp:jlstud:doi:10.1086/705538
Access Statistics for this article
More articles in The Journal of Legal Studies from University of Chicago Press
Bibliographic data for series maintained by Journals Division ().