Doesn’t a proper respect for federalism require us to stand back and let individual states assert whatever powers they wish to assert on the matter of product liability? No, it doesn’t, because to do so is in many cases to deprive the other states of a chance to adopt their own favored policy. We’ve belabored this point for years (particularly in the gun context; see here and here, for example), but now Eugene Volokh sums up the whole matter (Apr. 25) with great clarity. He concludes with the following points:
Finally, I would caution against appeals to tradition here. It’s true that most tort law has traditionally been state law; but that’s partly because historically most tort liability has involved either entirely intrastate behavior or behavior that’s largely intrastate. In particular, I don’t think there has been a long tradition of tort law imposing liability on defendants’ purely out-of-state behavior in the first place, especially when defendants’ behavior was lawful in the state in which it took place.
Moreover, as the economy has gotten more nationally integrated, Congress has indeed preempted state tort liability in many fields. This is clearest in sectors that have heavily involved interstate behavior, such as air travel; but it has happened even in areas where much more of the behavior is intrastate, such as (in considerable measure) labor law, employee benefits law, and more. Whether these federal actions were right or wrong, they must surely be counted when one is deciding what’s “traditional” here.
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