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60 Am. U. L. Rev. 71 (2010-2011)
Tort Law is State Law: Why Courts Should Distinguish State and Federal Law in Negligence-Per-Se Litigation

handle is hein.journals/aulr60 and id is 73 raw text is: TORT LAW IS STATE LAW: WHY COURTS SHOULD DISTINGUISH STATE AND FEDERAL LAW IN NEGLIGENCE-PER-SE LITIGATION BY BARBARA KRITCHEVSKY* TABLE OF CONTENTS Introduction .................................... ...... 72 I. The Doctrine of Negligence Per Se...................................... 76 A. The Evolving Rationales for Negligence Per Se ............. 76 B. The Scope of Negligence-Per-Se Liability ...................... 84 C. The Need for Legislative Action..............................87 II. Which Legislature Acted? How Courts Came to Find that Violations of Federal Law are Negligence Per Se .................. 91 A. Courts Equated State and Federal Law in Pre-Erie Negligence-Per-Se Cases................................................. 92 B. Courts Used Negligence Per Se to Fill Gaps in Federal Statutory Protection in the Years After Eie....... ..... 99 III. Why Courts Continue to Find that Violations of Federal Law Are Negligence Per Se ............................. 104 A. Misuse of Precedent Has Led Courts to Find that Violations of Federal Law are Negligence Per Se............ 105 B. Courts Have Treated the Negligence-Per-Se Question as One of Federal Law, Not State Tort Law .................... 107 C. Courts that Recognize that Negligence-Per-Se Liability Alters the Contours of Tort Law Do Not Follow the Implications of their Analysis....... .............. 111 IV. The Problems with the Current Negligence-Per-Se Analysis. 116 * Cecil C. Humphreys Professor of Law, University of Memphis, Cecil C. Humphreys School of Law. J.D., Harvard Law School. B.A., Middlebury College. I thank my colleague, Andrew J. McClurg, for his comments and suggestions on an earlier version of this Article. I am indebted to my research assistant, Matthew Gabriel, for his help with this Article. I also gratefully acknowledge the research assistance of Michael Goodin, Adam Ragan, and Todd Richardson at earlier stages of this project. 71