Whose idea was it? Why violations of state laws enacted pursuant to federal mandates should not be negligence per se

Abstract

The federal government often uses its spending power to pressure. states into adopting laws that reflect federal standards. Many states have enacted laws, such as laws setting the drinking age at twenty-one, in response to federal pressure and have done so even though the state legislature disagreed with the federal policy. State courts, however, have paid little attention to the reason states have acted in applying the doctrine of negligence per se and have imposed negligence-per-se liability for violations of standards with which state legislatures clearly disagreed. This Article argues that those courts are wrong. An individual who violates a law that a state adopted in response to a federal mandate should not face negligence-per-se liability because imposing such liability violates the institutional comity rationale for the doctrine and allows the federal government covertly to dictate state tort law. Negligence-per-se liability should only lie when the state legislature has decided that conduct is unsafe. Courts should presume that states have not made such a judgment when they act to comply with a federal mandate.

Publication Title

Wisconsin Law Review

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