Preemption as Inverse Negligence Per Se

Abstract

Once the question of whether federal law preempts state tort law has been raised, it does not require 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. 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 partly 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. 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.

Keywords: Tort Law, Preemption

JEL Classification: K13