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American Law and Economics Review, Vol. 2, No. 1 (Spring 2000), pp. 1-57


The regulatory compliance defense holds firms liable whose products or product warnings fail to satisfy federal regulatory standards, but does not exculpate firms that comply. Rather, compliance is relevant evidence for a jury to consider in a products liability action. This article argues that the defense should exculpate compliant firms as a matter of law. A Congress that thought about the matter would prefer this judicial construction of an unclear safety statute. To defend this view, the article argues that a legislature can have intentions in a normatively meaningful sense, that claims that a Congress or its agencies are captured by special interests should be nonjusticiable, and that, when a court is in doubt as to what a legislature intended, it should adopt that construction of the relevant statute that would be easiest for the legislature to correct if the court errs. In this case, it is easier for Congress to correct a construction that it intended to exculpate compliant firms than a construction that it did not.

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