Tort Law, Preemption and Risk Management

Abstract

Professor Eggen has carefully outlined the preemption doctrine and its impact to date on toxic tort law.' Her conclusion, a correct one in my view, indicates that there is little doctrinal coherence or consistent policy basis for the courts' recent preemption decisions in the pesticide and medical devices context. I suggest that there is ample reason for the courts' confusion. Preemption as a legal mechanism simply does not address the difficult problems that regulation and tort law face.

The preemption doctrine provides a vehicle for Congress and the courts to articulate the relationship between state and federal law in a wide variety of social and economic contexts.

However, social needs and goals vary in different contexts and federalism usually will be only one of a number of important concerns. If the other, often more basic concerns are not well understood or are not integrated into the substantive law, then the preemption doctrine will not likely make up the difference. Rather, applying the doctrine may further confuse the issues. In the area of toxic torts, the underlying substantive questions are serious and need to be answered. The cautious assumptions of the preemption doctrine should be carefully heeded.

To explain why we should pay particular attention to these assumptions, we need to consider the subject matter of the law. Although lawyers commonly speak of tort law, toxic torts, and regulation as though they are addressing separate phenomena, it is useful to consider them as different types of responses to a related group of technological developments. So, for purposes of this discussion, I will speak of toxic torts and tort law as synonymous and also treat regulation in the food, drug, occupational and environmental contexts as one type of regulation. The common terminology in this area has developed in the separate areas of law, thus there is no readily available vocabulary with which to discuss their commonalities.