Assessing the Adequacy of State Products Liability Lawmaking

Most torts professors have simply taken for granted that tort law is essentially state law: in America this is the way things are and have always been. In early 1995, however, both houses of Congress passed significant tort reform bills, raising in a dramatic way the question of the proper federal role in tort law. Since then, I have been able to develop my thoughts on the federalism issue at several conferences, including the one sponsored by Yale's two journals. What was unique about the Yale conference on federalism was the extent to which discussion focused on possible biases operating in a variety of policy areas on the state lawmaking process, biases that are conducive to undesirable policy outcomes.

In particular, the Yale conference was heavily influenced by the theme of "race to the bottom," and variations on that theme.