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Territorial Claims in the Domain of Accident Law: Conflicting Conceptions of Tort Preemption

Robert L. Rabin

Stanford Law School

Brooklyn Law Review , Vol. 74, No. 3, 2009
Stanford Public Law Working Paper No. 1411262

Beginning in 1992, with the landmark decision in Cipollone v. Liggett Group, Inc., the U.S. Supreme Court has decided a burgeoning number of preemption cases, squarely challenging the continuing vitality of tort in many domains of accident law. Cipollone addressed the preemption question in an atypical context. The case did not involve competing claims to territorial authority between a regulatory regime and state tort law. Rather, Cipollone involved a challenge to the continuing viability of tort in the face of statutory directives mandating explicit industry conduct; more specifically, the explicit warnings required in the 1969 version of the cigarette labeling act.

In this article, I begin by revisiting Cipollone to reassess what it has to offer as a foundation for setting the boundaries of regulatory containment of the tort system. Next, I discuss three leading cases from the series of efforts by the Supreme Court to grapple with express preemption clauses in a variety of regulatory schemes. Against this backdrop, I then explore the circumstances under which it might be justified to imply preemption despite the absence of an express provision, with particular reference to the recent Supreme Court decision in Wyeth v. Levine, addressing preemption in the context of FDA regulation of prescription drugs. A concluding note ties the strands together.

Number of Pages in PDF File: 23

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Date posted: May 29, 2009  

Suggested Citation

Rabin, Robert L., Territorial Claims in the Domain of Accident Law: Conflicting Conceptions of Tort Preemption. Brooklyn Law Review , Vol. 74, No. 3, 2009; Stanford Public Law Working Paper No. 1411262. Available at SSRN: http://ssrn.com/abstract=1411262

Contact Information

Robert L. Rabin (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-723-3073 (Phone)
650-725-0253 (Fax)
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