This Article will situate the federalism function among existing scholarly frameworks and assess the “contoured” approach to federal and state power balancing across the existing subject matter of torts. Part II will assess conflicting characterizations of tort law as on one hand “private” and on the other “public” law. Part III will define and explain competing functions of tort law with an eye to whether federalism fits the common criteria of these coexisting objectives, goals, purposes, and methods for adjudication. In Part IV, the Article will explore historical and contemporary roles of federalism to understand why this process becomes so deeply implicated in the resolution of civil justice claims. Part V will explore patterns in modern tort federalization to draw observations about the way this process partakes in American nationhood and legal culture. Its first subpart explores federalization in the name of constitutional rights initially with respect to free speech in the theories of defamation, privacy, and emotional distress. It then looks to federalization under due process jurisprudence in public takings and civil damage awards. The second subpart reviews federal preemption—the displacement of state common law actions by express or implied national legislative purpose. That discussion will take the reader through preemption approaches in transportation and auto safety, food and drug regulation, environmental protection, and employment claims. Although jurisprudence across these discrete industries has cross-pollinated in recent decades, viewing them serially in this fashion, hopefully, will make better sense of the sociocultural logics underpinning preemption—even if the rules themselves still appear quite nebulous today. Finally, Part VI will offer a discussion of these various substantive areas to support the general proposition that current struggles to balance state and federal authority—the federalism function—form a legitimate new policy function of torts today.
National Geographics: Toward a “Federalism Function” of American Tort Law,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol51/iss1/4