Law Commons^™

Tort Liability For The Sale Of Non-Defective Products: An Analysis And Critique Of The Concept Of Negligent Marketing, Richard C. Ausness

Law Faculty Scholarly Articles

This Article will evaluate the concept of negligent marketing to see whether it ought to become a part of our legal jurisprudence or whether it should be discarded as doctrinally unsound, possibly harmful to important social and economic interests.

Part II of this Article provides an overview of the negligent marketing theory. Negligent marketing can be divided into three categories: (1) product designs that make the product more attractive to criminals; (2) advertising and promotional activities that target inappropriate users; and (3) product distribution practices that facilitate retail sales of dangerous products to vulnerable or unsuitable users. The first category …

Unmasking The Presumption In Favor Of Preemption, Mary J. Davis

Law Faculty Scholarly Articles

It is inescapable: there is a presumption in favor of preemption. Historically, the Supreme Court has said differently-that, rather, there is a presumption against preemption. There is no such presumption any longer, if, indeed, there ever really was one. Preemption doctrine has been exceedingly puzzling in the last decade, but when one recognizes that the Court's doctrine not only favors preemption, but presumes it, preemption doctrine is not a puzzle at all.

This Article argues that the Supreme Court's recent preemption decisions compel the conclusion that the Court's preemption analysis has, in effect, created a presumption in favor of preemption, …

Will More Aggressive Marketing Practices Lead To Greater Tort Liability For Prescription Drug Manufacturers?, Richard C. Ausness

Law Faculty Scholarly Articles

Manufacturers of prescription drugs have begun to market their products more aggressively than they did in the past. These marketing efforts are not confined to health care professionals alone; pharmaceutical companies now engage in extensive direct-to-consumer advertising on radio and television, in the print media, and even on the Internet. While these promotional efforts no doubt increase sales, they may also lead to greater tort liability for drug-related injuries. The most likely theories of liability are failure to warn and negligent marketing. Liability for inadequate warnings will almost certainly increase if courts abandon the learned intermediary rule and require drug …