Shared Sovereign Immunity as an Alternative to Federal Preemption: An Essay on the Attribution of Responsibility for Harm to Others

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In 1992, the Supreme Court handed down a plurality decision in Cipollone v. Liggett Group, Inc. That decision, together with a series of subsequent cases dealing with the federal preemption of state tort law, served to reverse a long-standing judicial approach to federal preemption under which claims of express preemption had been summarily rejected. These more recent decisions have been criticized by many and, in fact, have been characterized by myself and others as examples of pro-business judicial activism seeking to impose tort reform from the bench. Yet, for all that is objectionable about the Court’s approach in these cases, often there is also something intuitively appealing about the results attained.

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