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Friday, March 09, 2012

Kurns v. Railroad Friction Products' Scary "Field" Trip to pre-New Deal Preemption Doctrine

In an effort to corner the market on blogging about boring federalism cases, I thought that I should shout out a warning about Kurns v. Railroad Friction Products, a "field preemption" decision handed down last Wednesday. The case, on the surface, is a snooze with no ramifications for any other preemption dispute. I certainly hope so, because, read in context of the SCOTUS's decision in PLIVA v. Mensing, it could represent a surreptitious attempt to foist Caleb Nelson's extraordinarily nationalistic theory of preemption on an unsuspecting world.

Kurns holds that the Locomotive Inspection Act ("LIA") preempts a railroad engine repair worker's state-law products liability claim to recover for mesothelioma caused by asbestos in the brake lining of railroad cars. But Kurns does not apply modern preemption analysis. Instead, it digs up an an 85-year old precedent, Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926), which uses an entirely different, much more draconian, and much more formalistic notion of "field preemption." Under Napier's view of the statute, the preempted field is defined by a set of physical objects -- locomotive equipment -- rather than by a set of regulatory purposes (say, protection of railroad workers from equipment malfunctions by setting a minimum and maximum level of precaution with regard to risk of malfunction). Thus, any state law that touched those physical objects, even if the states' purpose had nothing whatsoever to do with any federal objective, should be deemed to be preempted. Because the subject of lawsuit in Kurns was a locomotive car, Kurns, following Napier, finds that Kurns' suit was preempted.

If Kurns is just another case of bizarrely strong statutory stare decisis, then it is no big deal (although, in my view, such super-strong stare decisis is not really intellectually defensible). But, if the Court is actually trying to revive the magically hyper-reified theory of pre-New Deal "field preemption," then Kurns is a disastrous step along a path of confused business nationalism and legal formalism.

So what is Kurns? Is it a quaint judicial discovery of a jurisprudential relic that can be re-buried until the next LIA dispute, or is it an effort to use that relic as a blueprint for future preemption decisions? I would have assumed the former but for the fact that Justice Thomas wrote the majority decision in Kurns without much of a statement that he was applying now-completely discredited notions of law. After the jump, I'll explain (a) why those notions are properly discredited but(b) why Thomas and perhaps three (but hopefully not four) other justices might be attracted to the combination of business nationalism and legal formalism represented by the bygone decisions like Napier.

First, why was the old-fashioned theory of field preemption such a disaster? The pre-New Deal decisions imagined preempted fields as actual physical spaces where state law cannot intrude -- a sort of big grassy plain where federal statutes romp around like mindless cattle, having no discernible purpose in their statutory minds but nevertheless stomping out any state laws that happen to wander into the space. Even if the federal lawmakers never gave any thought whatsoever to the problem that the states were addressing with their laws, those laws were preempted, regardless of congressional purpose, if they regulated the physical things within the nationalized space.

The paradigm of such field preemption were 19th century dormant commerce clause decisions trying to draw objective lines between goods "in" commerce and goods at rest following their commercial migrations. Such decisions reached their height of absurdity when the Court held in a series of cases that states could not regulate liquor bottles stored in their "original packages," because they were still "in" interstate commerce --a series of decisions that destroyed Midwestern states' anti-liquor laws that the Court had held were perfectly permissible exercises of states' "police powers" as long as they operated on bottles that had ventured from their "original packages."

The problem with defining legal fields as physical spaces rather than legislative purposes is that one can end up making a federal law the exclusive regulation of issues that no federal lawmaker ever considered. Such rule is like Hannah Arendt's definition of bureaucracy: "rule by no one." For instance, one might hold that a federal statute designed to keep workmen from being squished or exploded by moving trains should not be construed to stop states from protecting workmen from being poisoned by stationary asbestos. The latter is a completely different problem than the former -- and one to which the Congress that enacted the LIA gave no thought whatsoever. To infer such "objective" federal preemption of state laws simply because those sate laws happened to touch on a certain set of physical items is to create a vast judge-made black hole of anarchy that no lawmaker ever wanted to create. Lawmakers regulate items to achieve certain ends, and it is nonsensical to use such regulation to preempt other ends that they utterly ignored. For instance, it would be very odd to infer that a state-law breach of contract claim for a seller's alleged failure to deliver a locomotive to a buyer was somehow preempted by the LIA simply because the former dealt with locomotive equipment. After all, the LIA deals with safety of equipment, not protection of contractual expectations regarding such equipment. Yet it is towards such absurdities that the old-fashioned Napier-style theory of preemption tends.

The old-fashioned theory of preemption, in short, led to government by judges' verbal concoctions ("original packages" and the like) on the theory that these concepts represented objective, wertfrei legal science. The practical effect of these judicially imagined "fields" was vast swathes of unregulated private activity that no lawmaker, state or federal, ever endorsed. Pro-business conservatives love this sort of thing, and, as a pro-business kind of guy, I understand the attraction. But, as a democrat who thinks that judicial decisions should carry out the deliberative choices of elected officials lawmakers, I regard this "conceptio-cracy" or "rule by textual canon and dictionary happenstance" as repulsive.

So why would I worry that the Court might actually try to revive this conceptual formalism? The problem is that Justice Thomas has attacked "frustration-of-purpose" preemption on the ground that judge shave too much discretion to attribute unwritten purposes to statutes. (See, for instance, his concurrence in Wyeth v. Levine in which he decries “a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives" as based on nothing more than Congressional and administrative "musings"). If one has such a strong anti-purposivist tendency, then the formalism of old-fashioned field preemption will be appealing, because the judge need only define some simple, bright-line concept that places some set of physical objects within exclusively federal control. The definition, not any finer grained inquiry into congressional purpose, does all of the work without any further exercise of judicial discretion, stomping on state law like Rabbi Loew's Golem stomped on Medieval Prague, a mindless machine gone mad, carrying out no one's purpose, not even its own because it lacks any such objects.

Justice Thomas, of course, is just one guy. But, just last term, he managed to rustle up three other votes to endorse Caleb Nelson's theory of preemption in PLIVA v. Mensing. As I noted at the time, this endorsement of the reigning king of formalistic federalism doctrine was scary: State power seemed to hang by Kennedy's stubborn refusal to join the part of the opinion that cited Caleb's work.

Did four justices see Kurns as a vehicle with which to do a little judicial necromancy, bringing back to life the preemption doctrines of 1926, doctrines that make no effort to look at the actual purpose of federal law but rather rely wholly on some bright-line concept ("locomotive equipment," "original package," etc) to push aside state laws that no member of Congress ever dreamed of disturbing? Search me. I just hope that Napier and its ilk are re-interred as fast as possible, and Kurns enters the decent obscurity of opinions parsing dull statutes with long-dead precedents.

Posted by Rick Hills on March 9, 2012 at 05:20 PM | Permalink


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I second the fabulous post description. Regarding your efforts to corner the market: carry on! I look forward to your federalism posts. Not sure if that serves as an incentive or a deterrent, though, because my preferences appear to be inversely correlated with those of people commonly held to be interesting.


Posted by: Brendan Maher | Mar 9, 2012 10:22:19 PM

This is a fabulous post.

But a question: Is there a missing "not" in this sentence? "For instance, one might hold that a federal statute designed to keep workmen from being squished or exploded by moving trains should be construed to stop states from protecting workmen from being poisoned by stationary asbestos."

Posted by: anoninla | Mar 9, 2012 6:21:39 PM

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