Preemption as Inverse Negligence Per Se

Federal preemption of state tort claims has been a controversial and frequently litigated issue over the past decade, arguably constituting the most important, if confusing, development in tort law over that period. Books, (1) law review symposia, (2) and much of a blog (3) are devoted to the topic. But a grand unified theory of preemption doctrine has been elusive, and preemption cases come to wildly unpredictable results. Sometimes statutory text is said to control the outcome of a case, but sometimes statutory text is all but ignored. (4) Sometimes questions of state sovereignty are placed at the forefront of preemption analysis, but other times the demand for a uniform federal scheme of regulation trumps state common law. (5) Sometimes courts defer to an agency's view about the preemptive effect of an agency's own regulations, but other times courts refuse to defer at all. (6) It is little wonder that scholars have described the Supreme Court's preemption jurisprudence as a muddle or as simply a veiled assertion of political power on behalf of either plaintiffs' lawyers or defendant manufacturers. (7) How can we account for the apparently inconsistent and unsatisfying results in preemption cases? Part of the problem, I suggest, is that federal preemption of state tort claims is particularly susceptible to the tendency to hit every legal nail with a public law hammer. What almost everyone in the preemption debate assumes is that the resolution of preemption cases is primarily a question of public law, involving various aspects of constitutional law, administrative law, and statutory interpretation. My argument here is that this apparent consensus fails to account for the divergent contexts to which preemption doctrine applies. In particular, the preemption of common law tort claims raises specific tort issues that have been largely neglected by courts and scholars. Most assume that common law tort remedies are state "regulations" in the relevant sense and so are subject to review through considerations of agency deference, regulatory competence, or national versus state power. This view obscures the fact that federal preemption, in whatever context, is always an argument about preemption of something--a state law tort claim, a local government's effort to engage in foreign affairs, (8) state regulation of health insurers, (9) or state labor law. (10) But once the question of whether federal law preempts state tort law has been raised, it does not require--or so I shall argue--that traditional principles of common law adjudication be discarded as well, particularly where the only available substitutes for common law categories are versions of textualist statutory interpretation or freewheeling "purposes and objectives" tests for implied preemption. (11) This Article suggests that the missing element in much of the case law and scholarship on preemption of tort claims is attention to the underlying character of the common law tort claims themselves. Such attention has been neglected party on account of the dominant constitutional and administrative law approaches to preemption, but also on account of the tendency even in tort law to treat products liability as if it were a separate field with its own, quite different set of doctrines. Though such issues are beyond the scope of this Article, the shift in the Restatement (Third) of Torts: Products Liability toward bringing negligence considerations back into design defect claims, (12) arguments for the bearing of negligence factors on failure to warn claims, (13) and recent scholarship on such traditional tort topics as causation in products liability claims (14) suggest that the effort to employ traditional common law tort doctrine in an area touching on products liability is not as odd as it might at first appear. My suggestion in this Article is that preemption analysis in the context of state tort claims would benefit both descriptively and normatively, by invoking the traditional tort doctrine of negligence per se but, in the preemption context, on behalf of defendants--inverse negligence per se. …