Boyle as constitutional preemption.

• Author: Clark, Bradford R.

INTRODUCTION

During his remarkable tenure on the Supreme Court, Justice Antonin Scalia was widely acknowledged to be the Court's leading proponent of textualism and originalism (1)--methodological commitments that instruct judges to interpret legal texts according to what a reasonably skilled user of language would have understood the text to mean at the time of its adoption. These commitments generally led Justice Scalia to disfavor doctrines--such as federal common law--that license judges to exercise broad discretion unmoored from federal constitutional or statutory texts. (2) Such doctrines are in tension with separation of powers and federalism because they enable judges to encroach upon the constitutional domain of the political branches and the states. Justice Scalia's opinion for the Court in Boyle v. United Technologies Corp. (3) arguably departed from his usual preferences by recognizing a government contractor defense as a matter of federal common law. (4)

Numerous critics have pointed out the apparent inconsistency between Boyle and Justice Scalia's broader methodological commitments. Whatever one thinks of the Court's opinion, however, the actual decision in Boyle finds substantial support in the text and structure of the Constitution. When the executive branch contracts to procure specialized military equipment to meet its needs, it does so pursuant to constitutional and statutory authorization. It is these underlying constitutional and statutory provisions--not federal common law rules--that preempt a state's efforts to deter or impede the performance of such contracts. Understanding Boyle as a case of constitutional preemption avoids reliance on disfavored doctrines of judicial discretion such as federal common law.

This Essay proceeds in three parts. Part I summarizes the Supreme Court's decision in Boyle and describes both the majority and dissenting opinions. Part II recounts various criticisms of Justice Scalia's opinion in Boyle, particularly the claim that he abandoned his deeper commitments to textualism, originalism, separation of powers, and federalism. Part III offers an alternative rationale for the decision in Boyle grounded in constitutional preemption, and explains why this approach is more consistent with Justice Scalia's broader methodological and constitutional commitments.

1. THE BOYLE DECISION

   Boyle was a state law wrongful death action brought by the estate of a U.S. Marine helicopter copilot who died when his helicopter crashed in the waters off the coast of Virginia during a training exercise. (5) The copilot drowned after the crash because--in accordance with the military's design specifications--the helicopter's hatch opened "out" rather than "in." (6) The estate could not sue the United States or the government officials who approved the specifications because they were immune from suit. Accordingly, the copilot's father brought a diversity action in federal court against the helicopter's manufacturer, United Technologies, alleging that the company had defectively designed the copilot's emergency escape system. (7)

   The jury returned a verdict in favor of the plaintiff and awarded damages against the manufacturer. (8) The Fourth Circuit reversed on appeal, holding that the defendant satisfied the requirements of the "military contractor defense" recognized by that court in another case. (9) The Supreme Court granted the plaintiff s petition for a writ of certiorari and upheld the validity of this defense as a matter of federal common law.

   Justice Scalia began his analysis in Boyle by rejecting the contention "that, in the absence of legislation specifically immunizing Government contractors from liability for design defects, there is no basis for judicial recognition of such a defense." (10) He explained that the Supreme Court has

   held that a few areas, involving "uniquely federal interests," are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced, where necessary, by federal law of a content prescribed (absent explicit statutory directive) by the courts--so-called "federal common law." (11) He found federal common law applicable in Boyle because "the civil liabilities arising out of the performance of federal procurement contracts" implicate a uniquely federal interest. (12) The Court found this interest to be closely related to two uniquely federal interests previously recognized by the Court: the rights and obligations of the United States under its contracts, and the civil liability of federal officials for actions taken within the course of their duty. (13) Although Justice Scalia acknowledged that Boyle involved "an independent contractor performing its obligation under a procurement contract, rather than an official performing his duty as a federal employee," he stressed that both scenarios "obviously implicated the same interest in getting the Government's work done." (14)

   Having found a uniquely federal interest, Justice Scalia proceeded to examine whether there was a significant conflict between this interest and the operation of state law. He found the requisite conflict because "[i]t makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production." (15) In either case, the application of state tort law would burden or impede the federal government's objective. For these reasons, the Supreme Court "agree [d] with the scope of displacement adopted by the Fourth Circuit." (16)

   In a forceful dissent, Justice Brennan argued that the Supreme "Court lacks both authority and expertise to fashion such a rule" of federal common law. (17) He asserted that the Court had never extended immunity beyond federal officers to nongovernment employees such as government contractors. (18) He also pointed out that Congress had considered but failed to enact a law establishing a federal contractor defense. (19) Thus, he concluded that the Court's recognition of a government contractor defense was improper because "[w]e are judges not legislators, and the vote is not ours to cast." (20) In a separate dissent, Justice Stevens did not reject federal common lawmaking in all cases, but stressed that Congress rather than the Court was "better equipped to perform the task at hand" (21)--namely, to balance "the conflicting interests in the efficient operation of a massive governmental program and the protection of the rights of the individual." (22)

   Boyle's majority and dissenting opinions appear to represent something of a role reversal for their authors. In other cases, Justice Scalia generally disfavored broad judicial lawmaking whereas Justice Brennan frequently championed such lawmaking. It would be easy to dismiss Boyle's role reversal as an aberration based on policy preferences. As Part III of this Essay explains, however, the decision actually rests on a firmer constitutional foundation than mere federal common law. Nonetheless, as the next Part recounts, commentators have been quick to point out the apparent inconsistency between Justice Scalia's opinion in Boyle and his larger methodological commitments.

2. CRITICISM OF BOYLE

   Numerous commentators have observed that Boyle represented a departure from Justice Scalia's general commitments to textualism and originalism, and marked "a notable exception to Justice Scalia's objections to federal common-lawmaking." (23) For example, soon after the decision, Professor Nick Zeppos wrote that "the result in Boyle seems flatly inconsistent with the textualist approach." (24) Even if the Supreme Court believed that "the military could not function if its contractors were subject to state tort law," Zeppos explained, "the usual textualist response to such 'policy' arguments is to relegate litigants to the legislative process." (25)

   Likewise, Professor Bill Marshall described Boyle as an example of "non- originalist activism." (26) In his view, "[n]o text or history supports a military contractor's defense, and no argument from constitutional structure can justify the Court's creation of federal tort law in this case (federal courts are, after all, not common law courts)." (27) Indeed, Marshall characterized Boyle as a "breathtaking" example of judicial activism because it "transgressed federalism concerns" and...