Article: Determining the Preemptive Effect of Federal Law on State Statutes of Repose

By Adam Bain

Statutes of repose can prevent causes of actions from arising or being enforced after a given period of time has elapsed from a defined event. In recent years, courts applying the doctrine of federal preemption have increasingly found that federal statutes removed the barriers of state statutes of repose to certain tort suits. In doing so, however, courts have not followed a consistent interpretive approach to determine whether Congress meant to preempt statutes of repose through careful consideration of congressional intent and an understanding of the reasons that state legislatures enacted the repose provisions.

This article proposes an interpretative framework for determining questions of federal preemption of state statutes of repose that gives due consideration to both the preemptive power of the federal government through the Supremacy Clause as well as the prerogatives of the state legislature to define the limits of a state’s causes of action. First, the article considers the nature of statutes of repose, particularly how they have developed as substantive rather than procedural components of state law. Second, the article discusses the different doctrines of federal preemption – express preemption, field preemption, and conflict preemption – considering application of each doctrine to questions of federal preemption of state statutes of repose. Third, the article explores how principles of statutory interpretation determine the preemptive reach of a federal statute, focusing on text-based principles, interpretive canons of construction and legislative history.

With this background, the article proposes an interpretive approach which strikes an appropriate balance between federal and state power through determining the considered intent of Congress to preempt state statutes of repose or leave them standing. This approach first considers the plain meaning of the text of the statute and any applicable “text-based” canons of interpretation. If this inquiry does not resolve the question, a court should consider whether “substantive” canons of construction can give rise to any presumption regarding preemption. The article discusses how a court should determine whether any presumption regarding preemption should apply when multiple substantive canons provide different indications of meaning. The final step in the interpretive analysis is to determine whether any presumption regarding preemption is overcome by evidence from the statutory context, the legislative history, or the purposes of the federal statute.

Finally, the article applies the interpretive approach to two ongoing conflicts in federal law regarding whether a particular federal statute preempts state statutes of repose. The conflicts concern the interpretation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which includes an express preemption provision and the Federal Tort Claims Act (FTCA), which does not.

On January 10, 2014, the United States Supreme Court granted a petition for certiorari in a case that raises the issue of whether CERCLA preempts state statutes of repose. The case, Waldburger v. CTS Corporation, is discussed extensively in the article.

To read the full article by Adam Bain, click here to download the PDF. The citation for the article is as follows:

Adam Bain, Determining the Preemptive Effect of Federal Law on State Statutes of Repose, 43 U. Balt. L. Rev. 119 (2014).

Adam Bain has represented the United States in environmental tort cases in federal district and appellate courts for over twenty-five years.  He has written extensively on federal statutory, evidentiary and discovery issues, and he frequently speaks on these issues at seminars and conferences.  His prior law review articles on statutes of limitations have often been cited by academics, litigators and courts. 

Call for Papers: Applied Feminism and Health

The University of Baltimore School of Law’s Center on Applied Feminism seeks submissions for its Seventh Annual Feminist Legal Theory Conference.  This year’s theme is “Applied Feminism and Health.”  The conference will be held on March 6 and 7, 2014.  For more information about the conference, please visit law.ubalt.edu/caf.

With the implementation of the Affordable Care Act (or Obamacare) and renewed attacks on reproductive health in the United States, the time is right to consider the relationship between feminism and health across multiple dimensions.  This conference seeks to explore the intersections between feminist legal theory and physical, mental, public, and community health in the United States and abroad.  Papers might explore the following questions:  What impact has feminist legal theory had on women’s health policy and practice? How might feminist legal theory respond to the health challenges facing communities and individuals, as well as increase access to health care?  What sort of support should society and law provide to ensure good health?  How do law and feminist legal theory conceptualize the role of the state in relation to health rights and reproductive justice?  What are the links between health, feminist legal theory, and sports?  Are there rights to good health and what are their foundations?  How do health needs and conceptions of rights vary across cultural, economic, religious, and other identities?  What are the areas where health justice is needed and how might feminist legal theory help?

This conference will attempt to address these and other questions from the perspectives of activists, practitioners, and academics.  The conference will provide an opportunity for participants and audience members to exchange ideas about the current state of feminist legal theories.  We hope to deepen our understandings of how feminist legal theory relates to health and to move new insights into practice.  In addition, the conference is designed to provide presenters with the opportunity to gain feedback on their papers.

The conference will begin the afternoon of Thursday, March 6, 2014, with a workshop for conference participants.  This workshop will continue the annual tradition of involving all attendees as participants in an interactive discussion and reflection.  On Friday, March 7, 2014, the conference will continue with a day of presentations by legal academics, practitioners and activists regarding current scholarship and/or legal work that explores the application of feminist legal theory to issues involving health.  The conference will be open to the public and will feature a keynote speaker.  Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Pulitzer Prize winning journalist Sheryl WuDunn, and Senators Barbara Mikulski and Amy Klobuchar.

To submit a paper proposal, please submit an abstract by Friday, 5 p.m. on November 1, 2013, to ubfeministconference@gmail.com.  It is essential that your abstract contain your full contact information, including an email, phone number, and mailing address where you can be reached.  In the “Re” line, please state:  CAF Conference 2014.  Abstracts should be no longer than one page.  We will notify presenters of selected papers in mid-November.  We anticipate being able to have twelve paper presenters during the conference on Friday, March 7, 2014. About half the presenter slots will be reserved for authors who commit to publishing in the symposium volume of the University of Baltimore Law Review.  Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume.  Authors who are interested in publishing in the Law Review will be strongly considered for publication.  Regardless of whether or not you are publishing in the symposium volume, all working drafts of papers will be due no later than February, 14, 2014.   Abstracts will be posted on the Center on Applied Feminism’s conference website to be shared with other participants and attendees.

We look forward to your submissions.  If you have further questions, please contact Prof. Michele Gilman at mgilman@ubaltedu.

King v. Maryland

On Friday, November 9, 2012, the Supreme Court announced that it would review Maryland v. King this year, and in the process rule on the constitutionality of the state’s controversial DNA collection law, which allowed police to obtain a DNA sample from arrestees suspected of violent crimes or burglary for comparison against the state’s database before they are found guilty of the underlying crime.

The case has been a source of debate since the Maryland Court of Appeals ruling, and was the subject of the University of Baltimore’s journal write-on competition this past summer. The winning case note for the 2012 academic year, authored by incoming Law Review  Editor in Chief John Baber, analyzes the Maryland high court’s decision as we await word from the Supreme Court:

Baber Case Note

Volume 42 Issue 3

Our March 28, 2013 symposium, Privacy Rights and Proactive Investigations: Emerging Constitutional Issues in Law Enforcement, brought together leading scholars and practitioners to explore three issues that have once more thrust Maryland to the frontier of law enforcement: the validity of DNA databases, new approaches and the latest thinking on witness identifications, and the use of tracking devices after United States v. Jones. Issue 3 is dedicated entirely to the articles that served as fodder for both sides of the debate that day, with a foreword by symposium moderator Thiru Vignarajah, Chief of the Major Investigations Unit at the Baltimore City State’s Attorney’s Office; article synopses are available here.

Post-Jones: How District Courts Are Answering the Myriad Questions Raised by the Supreme Court’s Decision in United States v. Jones by Jason D. Medinger

Back to the Future: United States v. Jones Resuscitates Property Law Concepts in Fourth Amendment Jurisprudence by Nancy Forster

Location, Location, Location: Balancing Crime Fighting Needs and Privacy Rights                       by Nancy K. Oliver

Research and Reality: Better Understanding the Debate Between Sequential and Simultaneous Photo Arrays by Frederick H. Bealefeld III

Research and Reality: Better Understanding the Debate Between Sequential and Simultaneous Photo Arrays  by Rebecca Brown & Stephen Saloom

Indecent Exposure: Genes are More than a Brand Name Label in the DNA Database Debate by Jessica D. Gabel

 Why DNA Databasing is good for Maryland – A DNA Analyst’s Perspective by Rana Santos

 

Privacy Rights and Proactive Investigations: Emerging Constitutional Issues in Law Enforcement

Our March 28th symposium examines growing tensions between constitutional safeguard and effective law enforcement in Maryland and across the nation including the validity of DNA databases, new approaches and the latest thinking on witness identifications, and the use of tracking devices after United States v. Jones, with forthcoming articles by several of our panelists serving as the foundation for the debate.  Author biographies and article synopses can be found here.

I.  GPS TRACKING AFTER UNITED STATES v. JONES

(1)  Nancy Forster, Former Public Defender for the State of Maryland:  Back to the Future: United States v. Jones Resuscitates Property Law Concepts in Fourth Amendment Jurisprudence.

(2) Jason Medinger, Assistant U.S. Attorney for the District of Maryland:                                      Post-Jones: How District Courts are Answering the Myriad Questions Raised by the Supreme Court’s Decision in United States v. Jones.

(3) Nancy Oliver, Division Counsel, Department of Justice – ATF:  Location, Location, Location: Balancing Crime Fighting Needs and Privacy Rights.

II. INNOVATIONS IN SUSPECT IDENTIFICATION

(1) Frederick Bealefeld, Former Commissioner of the Baltimore Police Department:  Research and Reality: Better Understanding the Debate between Sequential and Simultaneous Photo Arrays.

(2) Rebecca Brown, Director of State Policy Reform, Innocence Project, and Stephen Saloom, Policy Director, Innocence Project:  Improving Eyewitness Identifications: The Imperative of Reform and the Role of Police Leadership.

III. MARYLAND’S DNA DATABASE LAWS AND KING

(1) Jessica Gabel, Associate Professor, Georgia State University College of Law:  Indecent Exposure: Genes are More than a Brand Name Label in the DNA Database Debate.

(2) Rana Santos, DNA Technical Leader for the Baltimore Police Department : Why DNA Databasing is Good for Maryland: A DNA Analyst’s Perspective.

Volume 42 Issue 2

Here’s a look at our latest issue:

1) A Q&A with Keynote Speaker Senator Barbara Mikulski, moderated by Professor Margaret E. Johnson.

A full transcript of Senator Mikulski’s remarks at the 2012 Feminist Legal Theory Conference, Applied Feminism and Democracy, is available here.

2) Reflections on VAWA’S Strange Bedfellows: The Partnership between the Battered Immigrant Women’s Movement and Law Enforcement, by Alizabeth Newman, Clinical Professor at CUNY School of Law.

Professor Newman argues that while legal work and enforcement should be included in the panoply of approaches to eradicating domestic abuse, those approaches will be ineffective and even damaging as the exclusive tactics to the extent that these laws do not reach the root causes of domestic violence and are thus incapable of achieving the primary objective on their own.  This article is intended to contribute to an ongoing dialogue of reflective practitioners and advocates.

3) Beyond a Beautiful Fraud: Using a Human Rights Framework to Realize the Promise of Democracy, by Janel A. George.

Ms. George’s article suggests that the most fitting framework to include the issues of women “historically overlooked by the reproductive rights movement is a human rights framework.”  A full synopsis is available here.

4) Luogo e Spazio, Place and Space: Gender Quotas and Democracy in Italy, by Rachel A. Van Cleave, Dean and Professor of Law, Golden Gate University School of Law.

Dean Van Cleave’s article examines the use of law to exclude women from political space and place in Italy and the impact this has had on women’s citizenship rights as well as the impact on democracy.  A full synopsis is available here.

5) The Case of Two Biological Intended Mothers: Illustrating the Need to Statutorily Define Maternity in Maryland, by Catherine Villareale, Staff Editor, University of Baltimore Law Review.