In, 1996 both the United States House of Representatives and Senate passed legislation that, if enacted, would preempt state tort laws in significant ways. Why would a Congress otherwise apparently committed to vesting states with greater policymaking autonomy call for federal control of tort law?

Tort policymaking has traditionally been done at the state level. One assumption underlying this distribution of power is that states are better able than the national government to fashion tort rules appropriate for local conditions and circumstances. In other words, states are thought to have a special competence in crafting tort rules responsive to local needs. Some advocates for tort reform at the federal level maintain, however, that states are incapable or unlikely to develop tort rules – especially in the realm of product liability – consistent with national economic policy. Federal tort reform is needed, so the argument goes, to counter pressures that exist at the state level to use tort law as a vehicle for redistributing wealth from nonresident defendants to resident plaintiffs.

Our paper examines these two, contradictory assumptions about state competence in the realm of tort policymaking. First we explore the proposition that states are incompetent to formulate sensible tort law policy, especially in the area of product liability. Second, we employ social scientific research methodology to question whether states have special competence to formulate tort policy.