Tuesday, December 03, 2002

The interstices of common-law torts and the Federal Boat Safety Act

In SPRIETSMA, DECEASED v. MERCURY MARINE, A DIVISION OF BRUNSWICK CORP., (No. 01-706. Argued October 15, 2002--Decided December 3, 2002), the Supreme Court of Illinois rejected the lower court's rationale for dismissing the complaint, but affirmed the judgement on implied pre-emption grounds. Justice Stevens delivered the opinion of the Court, phrasing the legal question as follows: "The question presented is whether a state common-law tort action seeking damages from the manufacturer of an outboard motor is pre-empted either by the enactment of the Federal Boat Safety Act of 1971, 46 U. S. C. §§4301-4311 (FBSA, 1971 Act, or Act), or by the decision of the Coast Guard in 1990 not to promulgate a regulation requiring propeller guards on motorboats."

First the facts, as exactly described in the decision. Petitioner's wife was killed in a boating accident when she was struck by the propeller of an outboard motor manufactured by respondent, Mercury Marine, a division of Brunswick Corporation. In petitioner's subsequent common-law tort action in Illinois state court, he claimed that Brunswick's motor was unreasonably dangerous because, among other things, it was not protected by a propeller guard. The trial court dismissed the complaint, and the intermediate court affirmed, finding the action expressly pre-empted by the Federal Boat Safety Act of 1971 (FBSA or Act).

Now the holdings. Since the lower court justified its holding on the basis of an express pre-emption in the FBSA, Justice Stevens begins his explanation by reviewing the FBSA. Holding that the FBSA does not pre-empt state common-law claims such as petitioner's, Stevens refers to Section 10 of the FBSA Act, which sets forth the purported express pre-emption clause, to explain this holding. According to §40's saving clause, compliance with the Act or standards, regulations, or orders prescribed under the Act does not relieve a person from liability at common law or under state law. The reasoning gets interesting here, as the Court tries to show how the lack of an "express" pre-emption by the FBSA on common-law tort-claims. I quote:

"Section 10's express pre-emption clause--which applies to "a [state or local] law or regulation"--is most naturally read as not encompassing common-law claims for two reasons. First, the article "a" implies a discreteness that is not present in common law. Second, because "a word is known by the company it keeps," Gustafson v. Alloyd Co., 513 U. S. 561, 575, the terms "law" and "regulation" used together indicate that Congress only pre-empted positive enactments. The Act's saving clause buttresses this conclusion. It assumes that there are some significant number of common-law liability cases to save, and §10's language permits a narrow reading excluding common-law actions. See Geier v. American Honda Motor Co., 529 U. S. 861, 868. And the contrast between its general reference to "liability at common law" and §10's more specific and detailed description of what is pre-empted--including an exception for state regulations addressing "uniquely hazardous conditions"--indicates that §10 was drafted to pre-empt performance standards and equipment requirements imposed by statute or regulation. This interpretation does not produce anomalous results. It would have been perfectly rational for Congress not to pre-empt common-law claims, which necessarily perform an important remedial role in compensating accident victims."

The Court also explains why the Coast Guard's 1990 decision not to regulate propeller guards fails to pre-empt petitioner's claims. That decision left applicable propeller guard law exactly the same as it had been before the subcommittee began its investigation. In the words of the court, "A Coast Guard decision not to regulate a particular aspect of boating safety is fully consistent with an intent to preserve state regulatory authority pending adoption of specific federal standards".

The Court then shows why the FBSA's statutory scheme implicitly pre-empt petitioner's claims. As Ray v. Atlantic Richfield Co., 435 U. S. 151, and United States v. Locke, 529 U. S. 89, distinguished, the Act does not require the Coast Guard to set forth comprehensive regulations covering every aspect of recreational boat safety and design; nor must the Coast Guard certify the acceptability of every recreational boat subject to its jurisdiction. Stevens writes: "Even if the FBSA could be interpreted as expressly occupying the field of safety regulation of recreational boats with respect to state positive laws and regulations, it does not convey a clear and manifest intent to completely occupy the field so as to foreclose state common-law remedies. This Court's conclusion that the Act's express pre-emption clause does not cover common-law claims suggests the opposite intent."

Monday, December 02, 2002

More on "No Child Left Behind"

No Child Left Behind (NCLB) has been described by the Maple River Education Coalition as "a massive grab federal power over education". (See the very different description proffered by the US Department of Education.) Technically, there is reason to believe that the US Constitution (via the 10th amendment) prohibits the federal government from involved in education. The NCLB disregards this by holding that each state must set a single level of achievement for all students in that state-- measured by federally-mandated tests, of course. All resources, time, attention and accountability are directed towards meeting the requirements of that one level of "proficiency " for all. One might be tempted to imagine young children as sheep instead of potential citizens and creative, individual members of society.

The National Assessment for Educational Progress or NAEP, is a biennial national sampling assessment conducted in 4th, 8th and 12th grades which will now be, for the first time, required by federal law. Strictly speaking, if the state is taking federal education money (which usually falls under Title 1), all of its public schools must participate in state assessments. No state or school is exempt. As I mentioned before, this includes Alabama.

A newletter I recieved from the Maple River Coalition warned as follows:

Schools are facing a oncoming nightmare. It will be costly. It will focus almost exclusively on low performers. Do you wonder where your education dollars are going? Massive amounts of state and federal money have been poured into Goals 2000 and School-to-Work restructuring and other federally conceived programs. Requirements of NCLB will multiply this drain on education resources.

How this narrowly-channeled focus on low performers will measure the actual educational reform on state schools is a mystery to me. We shouldn't be surprised to find that some students will do learn alot without necessarily "performing well" on standardized tests. The jury is still out on whether or not performance anxiety is a rite of passage that might prove beneficial to students. In the meantime, however, companies like The Lightspan Network are marketing cheat-sheets to assist states in passing the NCLB test. So everybody gets tested-- the children, the teachers (in their ability to prepare the students for the tests), the schools (in their ability to meet quotas), and the states (in their ability to meet the fed's demands). Yet all the testing in the world cannot hide the fact that what everyone will be learning to pass these tests is not how to think or deliberate, but how to memorize, regurgitate, cut corners, and hate school. President Bush has, indeed, "transformed the federal role in education", but this transformation is an inefficient and dastardly one, adding weight without substance. Should we feign shock if the results never show up as more than bureaucratic obesity?
No Child Left Behind: An example of idealization at the expense of education.

The new federal law known as "No Child Left Behind" might be an example of how good intentions lead to bad policy consequences. The goal is to make sure that no disadvantaged child suffers from lower educational opportunity, as measured by standards. However, The National Center for Policy Analysis points out that this act might be too ambitious for its own good, which is directly related to the purported good of the children it aims to assist. Apparently, the act is "composed of a dizzying set of new requirements: annual testing of students in reading and math from grades three through eight, transfer options for children in schools that fail for two years running, and private tutoring after three years -- paid for with federal money earmarked for poor schools." Sounds good. So what is the problem?

For starters, the benefits of the No Child Left Behind Act will be concentrated in geographical regions and areas that already possess the financial capacity to engage in school reform. Just as no child should be left behind, no standardized test should be assumed as a free lunch-- anyone who has taken the SAT or GRE knows that test administration costs a fair bit of money. One might even argue that standardized tests impose prohibitive costs on poor students applying to college, as even the ability to apply presupposes the financial wherewithal to pay for the tests. Poor and rural school districts, already strapped for funds, will bear the costs of this Act disproportionately. According to an April report from the General Accounting Office, 35 states failed to meet the testing and assessment requirements of the 1994 Comprehensive Education Reform Act -- which is a milder version of the Bush plan.

I will take this personally, as education reform in Alabama has progressed so slowly as to be called "snail-like". The arguments for silent seething are at an impasse. Teachers unions here have waged their wars on private education at the expense of disadvataged students. I must thank Diana Jean Schemo, whose article "Poor Rural Schools Must Struggle to Meet New Federal Rules" for the New York Times, reveals the extent to which my home-state has been hurt by the Bush administration's emphasis on reform instead of school choice. In Alabama, teachers at poor and remote schools must often teach from textbooks first published in 1961. You can imagine how well such instruction prepares them for "the real world". It only increases their competitiveness to the extent that archaic, fossilized knowledge is useful (which, I hope most will admit, cannot be the case). In order to earn the equivalent of an academic diploma which will allow them to attend a university, Alabama students must master a foreign language -- although there are no foreign-language teachers at some schools. Spending money on tests when you can't even afford teachers is a disgrace. But, then again, politicians in Alabama seem fairly comfortable with disgrace. What surprises me is that our school-friendly President should be.