Field Preemption: Opening the 'Gates of Escape' from Tort Law

33 Pages Posted: 10 Apr 2018 Last revised: 22 Apr 2019

Date Written: February 2019


Richard Epstein remains a (lone) staunch defender of field preemption of state tort laws in drug failure-to-warn and design defect cases. Field preemption blocks state efforts to regulate within that field even where there is no explicit conflict with federal regulation.

Epstein’s position squares with his libertarian predilections. He has decried how concurrent federal and state regulation ratchets up governmental control so that the most intrusive regulator always wins. Moreover, his sharp critique of more moderate conflict preemption approaches, such as my “agency reference model” that harnesses key interpretive tools of administrative law to shed light on the preemption question, follows from his distrust of, and disdain for, the burgeoning administrative state.

Far less examined is the extent to which Epstein’s normative vision of tort law — and how far it deviates from the reality of the expansion of tort liability and rejection of contractual defenses since the 1960s — drives his fervent embrace of field preemption. Seen in this light, field preemption compensates for the systemic errors of tort law.

Framing Epstein’s case for field preemption not as conventionally understood in line with his broader theories of constitutional design but instead as compensating for the systemic errors of tort law has two significant implications. First, his critiques of the “agency reference model,” which incorporates principles of administrative law into courts’ preemption decision-making framework, are overdetermined. No amount of evidence that, as a positive descriptive matter, contrary to Epstein’s dire predictions, courts are moving in this direction or that they are equipped to scrutinize the administrative regulatory record in deciding whether a state law failure to warn or design defect claim should be foreclosed makes a difference, if the first best position is wholesale eradication of these expansive products liability causes of action.

Second, the rise of federal preemption of products liability claims stunted the evolution of more restrictive state tort law standards such as Restatement (Third) of Torts: Products Liability Section 6(c). If that is so, then field preemption is as much to blame as expansionist products liability law for perpetuating the need for a gate of escape from poorly developed concepts of tort liability against drug and device manufacturers.

Keywords: preemption, products liability, drug design litigation, failure to warn litigation

JEL Classification: K13, K23, K41

Suggested Citation

Sharkey, Catherine M., Field Preemption: Opening the 'Gates of Escape' from Tort Law (February 2019). Journal of Legal Studies, 2019, NYU School of Law, Public Law Research Paper No. 18-24, Available at SSRN:

Catherine M. Sharkey (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6729 (Phone)

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