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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.
Other publications by this author
- Tobacco Control Strategies: Past Efficacy and Future Promise
- Dissembling and Disclosing: Physician Responsibility on the Frontiers of Tort Law
- Poking Holes in the Fabric of Tort: A Comment
- Smoke Gets in Your Eyes
- The Case for Specially Compensating the Victims of Terrorist Acts: An Assessment
- Controlling the Retail Sales Environment
- Respecting Boundaries and the Economic Loss Rule in Tort
- Financial Compensation for Victims of Catastrophes: United States
- September 11 Through the Prism of Victim Compensation
- Pain and Suffering and Beyond: Some Thoughts on Recovery for Intangible Loss
Author
- Robert L. Rabin
- Stanford Law School
- rrabin@stanford.edu
- 650 723.3073