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Kotler's Alternative to Standard Preemption Analysis

By James M. Beck and Mark Herrmann

Here's another post along the lines of "all preemption, all the time."

Professor Martin Kotler of Widener University School of Law has posted on SSRN his manuscript Shared Sovereign Immunity as an Alternative to Federal Preemption: An Essay on the Attribution of Responsibility for Harm to Others. Professor Kotler argues that courts ought not to look to Congressional intent to determine whether preemption exists. Rather, the question is one of sovereign immunity: If a government has sufficiently constrained a company's ability to act, then the company ought not to be faulted for what the government compelled. The government should "share" its sovereign immunity with the manufacturer.

Here's the money quote:

"If a defendant is confronted with liability resulting from conduct which was compelled by congressional mandate or regulatory command, fairness considerations demand that the sovereign immunity available to the governmental entity also be made available to the private actor. In the absence of compulsion, however, there is no reason that state tort law should not be permitted to demand that individuals and entities accept responsibility for having caused harm."

Hat tip to Torts Prof.

Full post as published by Drug and Device Law on October 23, 2008 (boomark / email).