“Combining an expertly honed litigation strategy with the ascendant law-and- economics conception of tort law as regulatory (which had never been a significant part of how judges or legislators understood torts), the tort reform movement convinced the [U.S. Supreme] Court to use preemption doctrine as a tort reform tool. As torts professors, we can see Geier [preemption] and its progeny as of a piece with Daubert [admissibility of expert testimony] and BMW v. Gore [punitive damages] and their progeny. Just as the Federal Rules of Evidence provided the means through which the Court could address ‘junk science,’ and the Due Process Clause of the Constitution anchored the Court’s critique of punitive damages run ‘amok,’ the Supremacy Clause is now the hook for softening what the Justices perceive to be unduly plaintiff-friendly liability standards.” Fordham University Law Professor Benjamin Zipursky, critiquing a recent law review article on preemption. He suggests that it was written “without the benefit of a big picture of what has happened in products liability preemption litigation over the past two decades or so.”
Jotwell: Torts, March 11, 2014.