At the time, state courts and legislatures were in the process of overturning thirty years of a strict liability experiment—an experiment that had been tried and ultimately found to be inconsistent with our fundamental understanding of the circumstances under which the assignment of responsibility for accidents was to be made.

The timing could not have been worse. Because the Court did not articulate any principled basis for determining the content of federal policy, conflict preemption emerged as a means of not just reforming tort doctrine to rein in its perceived excesses, but to abolish it altogether.

This Article traces the development of these events, illustrates the problem through the example of the Consumer Product Safety Commission’s regulation of disposable lighters, and proposes a limitation to the use of conflict preemption doctrine in order to ensure that victims of negligence are not left without recourse.

It concludes that unless such an instruction is legislatively mandated, it is inappropriate for the judge to give such an instruction since it is intended to or permits the jury to manipulate their factual findings to evade the result contemplated by the legislature.

The observation that the economically motivated actor has been disfavored historically contradicts much of the descriptive and normative law and economics literature which argued that wealth maximizing behavior was and should be promoted by the legal system.

It goes on to argue that intuitive judgments as to whether conduct is socially acceptable or not are the product of the perceived utility of the conduct, whether the conduct is viewed as furthering or restricting freedom of choice, and the motive underlying the conduct.

The primacy of autonomy, however, is often obscured by the fact that our conception of autonomy has evolved over the years. Once understood in terms of an individual’s rights in private property, autonomy is now widely perceived in terms of the protection of one’s bodily integrity.

Additionally, based on personal experience gained in years of litigation with schools over the appropriateness of special education programs and services, many of the common abuses of the system established by the IDEA are identified and changes are suggested.

Thus, in informed consent cases when the physician’s conduct is judged under a reasonable patient standard or in products liability cases when a manufacturer is judged under a reasonable consumer standard, we are dealing with what this Article labels “behavioral strict liability.”

Thus, although the tort reform debate often focuses on the conflict between legislative bodies and the judiciary, this is largely a distraction. The more important question deals with the allocation of decision-making power between the jury, which makes normative judgments about behavior on behalf of the local community, and the legislatures, which make such judgments on behalf of larger political subdivisions.

The modern American tort reform movement’s recognition of this ambivalence underlies the essential strategy for reform. The reformers’ goals are more far reaching than the limitation of jury decisionmaking through such devices as capping damages or modifying rules of evidence and procedure. Changes such as those are, relatively speaking, minor. Rather, by altering the basic concept of duty, tort reformers seek to undermine the entire institution of civil trials so that cases can be decided by reference to abstract principles instead of real-world assessments of the parties’ injuries and harm-causing conduct.