The University of Baltimore School of Law’s Center on Applied Feminism seeks submissions for its Eighth Annual Feminist Legal Theory Conference. This year’s theme is “Applied Feminism and Work.” The conference will be held on March 5 and 6, 2015. For more information about the conference, please visit law.ubalt.edu/caf.
By Jeffrey Blumberg¹
“Sit by the well.” This was the guiding principle by which a friend and fellow returned Peace Corps volunteer, who served in Africa in the 1960s, conducted her volunteer service. She explained that volunteers were instructed to listen, learn, adapt and integrate culturally, and understand their cultural settings. Volunteers were given permission to not immediately “accomplish” but first understand the context of their volunteer assignments and the nuances of local players’ inter-relationships, cultural norms, and community needs. It was only after having this period of reflection that volunteers would be considered ready to roll up their sleeves and go about undertaking their assignments. This concept of sitting by the well is tantamount to obtaining intercultural competency before setting out to conduct community development work.
By Dr. Dana Raigrodski, Lecturer & Director, General L.L.M. track, from the University of Washington School of Law, Seattle, WA
Join the University of Baltimore Center on Applied Feminism and the Law Review at the 7th Annual Feminist Legal Conference on March 6-7th. For more information on the conference schedule click here for the full slate of panels and speakers.
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.