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Working Paper

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This essay was written as a contribution to one of Foundation's "Story" series. In Geier, a lawsuit had been brought on behalf of a teenager whose injuries from an accident might have been lessened if her car had contained an airbag. Plaintiffs sued on the straightforward basis that the design choice to omit a safety device of proven merit made the car unreasonably hazardous. Federal safety regulations had required the maker of her car to install some such device as an airbag in at least 10% of the cars it made the year it made her car – but her car had only a manual lap-and-shoulder belt (which she had used). Just weeks before her accident, Congress had passed a statute requiring airbags in ALL cars – but not for several model years into the future. In the Supreme Court, whether federal law allowed the case to proceed proved to be a matter as complex as its theory of liability was simple. At issue was a statute that in one section gave the federal government exclusive authority to set auto safety standards and in provided for the saving of common law claims. How did these two provisions interact? The essay shows just how complicated the question was by looking at the history of both design defect liability (still nascent at the time Congress passed the legislation in question) and federal standards on airbags (finally promulgated only after more than a decade of wrangling). Unsurprisingly, this background produced a variety of perspectives – and outcomes – in state and federal cases prior to the suit at issue here. Introducing even further difficulties was a contemporaneous set of Janus-faced Supreme Court decisions on federal pre-emption of state tort law. Only after taking all of these considerations into account does the essay explore the litigation choices of plaintiffs’ and defense counsel, as well as the Geier opinions. Drawing on two very recent Supreme Court decisions invoking the relationship between regulatory and judge-made law, the essay invites the reader to view the case less in terms of conflict between federal prerogatives and state sovereignty, and more as involving the accommodation of the competing modes of lawmaking and the influence of time’s passage in the modern state.


Administrative Law | Common Law | Constitutional Law | Law