Thursday, March 1, 2012

2011-2012 Supreme Court Term: Decision in Kurns v. Railroad Friction Products Corp.: Statutory or Constitutional Stare Decisis?

Yesterday the Supreme Court issued a decision in Kurns v.  Railroad Friction Products Corp.  This is yet another judicial decision ruling that a piece of federal regulatory legislation should be interpreted to preempt state common law tort claims.  A disturbing element in this case is the willingness of the Court to give precedential effect to a case that was decided in 1926 at the height of the Court's opposition to progressive legislation protecting workers.

The facts of Kurns were that George Corson, a welder and machinist for a railroad, developed mesothelioma from exposure to asbestos.  His widow sued the manufacturer of some of the machinery for defective design of the equipment and negligent failure to warn of the risks of exposure to asbestos.

In 1915 Congress enacted the Locomotive Inspection Act (LIA), which prohibited railroads from using any equipment that had not be inspected and approved by federal inspectors.  Eleven years later in Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926), the United States Supreme Court considered the constitutionality of two state statutes that required railroads to use particular kinds of safety equipment.  The Court in Napier ruled that the state laws were unconstitutional because the LIA so "occupied the field" as to leave no room for state regulation of locomotive equipment.  This represents a straightforward application of the doctrine of "field preemption."

In Kurns in an opinion by Justice Thomas a majority of the Supreme Court invoked Napier for the proposition that state common law claims associated with the safety of railroad equipment are preempted as well, just like state regulatory statutes.  This follows recent decisions like Altria Group v. Good (2008), Riegel v. Medtronic (2008), and Pliva, Inc. v. Messing (2011) finding that federal statutes preempted state common law tort claims without any evidence from the legislative history that Congress intended such a result.

In dissent in Kurns, Justice Sotomayor contended that state common law claims for negligent failure to warn could be distinguished from claims for defective design.  She would have found that while the LIA preempts lawsuits based upon the allegation that the equipment itself was negligently designed, the federal law should not be interpreted as preempting a claim based upon the manufacturer's failure to warn people about the dangers inherent to its operation.  Only two other justices agreed with her.

Justice Kagan's concurring opinion is what really grabbed my attention.  She agrees with the majority that under Napier the plaintiff's common law tort claims are preempted.  However, she thinks that Napier was wrongly decided - that the Supreme Court would not come to the same conclusion today that the LIA "so occupies the field" as to preempt any state regulation of the safety of locomotive equipment.  Nevertheless, she voted with the majority because at this point it was up to Congress to amend the statute if they did not agree with the Court's interpretation of it.  Here is the relevant portion of Kagan's opinion:

I doubt this Court would decide Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926), in the same way today. The Napier Court concluded that Congress had “manifest[ed] the intention to occupythe entire field of regulating locomotive equipment,” based on nothing more than a statute granting regulatory authority over that subject matter to a federal agency. Id., at 611. Under our more recent cases, Congress must do much more to oust all of state law from a field. See, e.g., New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 415 (1973) (rejecting preemption even though Congress had enacted a “detailed” and “comprehensive” regulatory scheme). Viewed through the lens of modern preemption law, Napier is an anachronism.  But Napier governs so long as Congress lets it—and that decision provides a straightforward way to determine whether state laws relating to locomotive equipment are preempted.
I think Justice Kagan is entirely right in saying that Napier was entirely wrong.  The brief and summary Locomotive Inspection Act is hardly the type of overarching scheme of regulation that one associates with "field preemption."  Until Congress enacts a detailed and comprehensive program that seeks to guarantee the safety of railroad equipment, the states should absolutely be considered free to enact laws and acknowledge legal rights that protect railroad workers from defective equipment.  So why not overrule Napier?

Why is the doctrine of stare decisis so strong in this case to the extent that the plaintiff didn't even ask the Court to overturn Napier?  After all, the Supreme Court overrules precedent all the time: Barnette overruled GobitisBrown overruled Plessy, Lawrence overruled Bowers, and Citizens United overruled McConnell.  Why shouldn't the Court overrule a decision as clearly erroneous as Napier?

The answer is that in Napier the Supreme Court was supposedly interpreting a statute, not the Constitution.  The Napier Court found that a federal statute, the LIA, should be interpreted to mean that Congress did not want the states to have any authority to enact laws regulating the safety of railroad equipment.  Accordingly, Kurns involved a question of statutory stare decisis, not constitutional stare decisis.  And statutory stare decisis is stronger - far stronger - than constitutional stare decisis.

That seems anomalous, does it not?  One's initial reaction would be that an authoritative court interpretation of the Constitution should be worthy of more respect than an authoritative judicial interpretation of a mere statute.  But the reverse if true.  Once the courts have interpreted a statute, they are loathe to return to the subject.  Even where the courts make egregious errors misconstruing the language or intent of a legislative enactment, they are far more likely to follow their previous decisions rather than to correct the errors.  As Justice Sotomayor concedes in her dissent:

Napier’s construction of the LIA has been settled law for 85 years, and “‘[c]onsiderations of stare decisis have special force in the area of statutory interpretation.’” Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202 (1991).

Why is this?  Why should the principle of stare decisis be so much more powerful in the case of statutes than the Constitution?  A few reasons have been suggested.  The first deals with the intent of the legislature and the relative ease of amending statutes. Legislatures are is surely aware of court decisions interpreting their statutes, and if they disagree with a court's decision the remedy is obvious; repeal or amend the statute.  Constitutions are not so easily amended.  The second reason for according more respect to court decisions interpreting statutes is more subtle.  Individual reliance interests are more likely to be predicated on consistency of statutory interpretation rather than consistency of constitutional interpretation.  In the case at hand, for example, equipment manufacturers, employers, workers, and public and private insurers all adjusted their conduct, their contracts, and their investments based upon the Court's initial adjudication in Napier that the Locomotive Inspection Act bars state law regulation of railroad equipment.  In contrast, in constitutional cases there is little individual reliance and almost never any financial reliance on continuity in the law.  What is at stake in constitutional cases - for example, whether black children may attend schools with whites or whether women have the right to attend V.M.I. with men - certainly affects people's lives in important ways but does so on a societal level, not an individual level.  As noted in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court should be leery of suddenly withdrawing a constitutional right upon which millions of people have come to depend, but overruling prior interpretations of the Constitution does not usually cause the same kind of specific financial hardship and disruption that, for example, changing the interpretation of a tax statute would.

However, was this really a case involving statutory stare decisis?  Does the use of  Napier in this case represent statutory stare decisis or constitutional stare decisis?  I would argue that it was not so much the interpretation of the LIA that was at stake in Napier as it was the interpretation of the Supremacy Clause of the Constitution.  It is the constitutional effect of the LIA on state law that made the difference in that case.  The constitutional effect could have been reexamined in Kurns.

Furthermore, there is the fact that Napier was handed down during an era when the Supreme Court was utilizing all of the tools at its disposal - the Commerce Clause, the General Welfare Clause, the Due Process Clauses - to strike down laws protecting workers from abuse and exploitation.  See Lochner v. New York (1905) (striking down maximum hour legislation under 14th Amendment Due Process); Coppage v. Kansas (1915) (striking down legislation protecting the right to join a union under 14th Amendment Due Process); Hammer v. Dagenhart (1918) (striking down federal law prohibiting shipment of goods made with child labor under Commerce Clause); the Child Labor Tax Case (1922) (striking down federal law taxing goods made with child labor under the General Welfare Clause); and Adkins v. Children's Hospital (1923) (striking down law setting minimum wage for women and children under 5th Amendment Due Process).  Napier v. Atlantic Coast Line R. Co. (1926) is but another example of the Supreme Court from this period of the Supreme Court using any constitutional means available to trample on the rights of workers.  

It is distressing enough that the Supreme Court continues to regard itself as the guardian of constitutionally-imposed "tort reform," employing the doctrine of preemption to prohibit lawsuits that Congress had no intention of barring.  In Kurns that unfortunate tendency is compounded by the fact that the Court chose to follow precedent from the Lochner era reflecting the economic bias of laissez faire.

Wilson Huhn teaches constitutional law at The University of Akron School of Law.

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