That's the name of this article by Catherine Sharkey. Here's the abstract:
In
tort preemption cases, when federal law ousts conflicting state tort
law, two fundamental functional premises should hold true: (1) the
federal standard of care is more than a minimal standard and (2) the
state standard of tort liability has a significant regulatory effect (if
not the regulatory purpose) by trading off risks and benefits to
inhibit or to encourage risk-taking conduct that interferes with, or
substantially alters, a federal regulatory scheme. The regulatory role
of state tort law is front and center in this paradigm of preemption.
But what about the compensatory role of tort law? Should there, in fact,
be a third premise that the federal regulatory regime must provide a
substitute to injured victims for tort-based compensation? Or perhaps a
weaker version, such that the absence of federally provided compensation
is a thumb on the scale against preemption? Conversely, should the
existence of such a federal compensation scheme weigh in favor of
preemption? The National Childhood Vaccine Injury Act (Vaccine
Act) is a rare example whereby Congress provides for a federally
administered compensation fund alongside its newly fashioned regulatory
standards. The vaccine context thus provides an opportunity to explore
the relationship between preemption and compensation. In this
Article, I provide some alternative frames for analysis. Frame One is
conventional statutory interpretation focused on statutory text and
legislative history. Frame Two is consideration of the backdrop of tort
lawsuits at the time when Congress acted and, relatedly, whether
Congress provided a substitute administrative compensation scheme for
tort law remedies. This frame is key to resolving disputes that amount
to implied field preemption — namely, a categorical preemption claim
that federal law ousts state law regardless of the precise risks
considered by the underlying federal regulatory agency. My argument here
is that the absence of compensation — particularly against a backdrop
in which, prior to enactment of the federal scheme, tort law effectuated
both regulatory and compensatory goals — renders the regulatory scheme
incomplete. Conversely, the existence of a federal compensation scheme
keeps categorical preemption claims on the table. But the
analysis should not end with Frame Two. Even if a categorical preemption
argument fails because of the absence of a federal compensation fund, a
narrower form of risk-based implied conflict preemption — in which the
underlying regulatory agency has considered the risks and benefits at
issue and resolved them in a way that is at odds or in tension with
imposition of the asserted state-law duty — may be justified. And even
where a categorical preemption argument is plausible, given the
existence of a federal compensatory regime, there may nonetheless be a
stronger underlying risk-based argument worth considering. Here is where
Frame Three comes into play. Frame Three encapsulates the “agency
reference model” I have developed in prior work, whose prime target is
conflict preemption. The primary question in conflict preemption cases
involving ambiguous congressional intent should be whether the federal
agency considered the same risks and benefits that are the source of the
competing state standard. Substantial deference should also be accorded
to the underlying agency’s position on preemption, based on the
thoroughness and consistency of its considered views.
