The Constitutionality of Statutes of Repose: Federalism Reigns

The development of common-law tort liability, especially since the late 1950s and early 1960s, has broken many of the barriers to plaintiff recovery. The abrogation of the privity requirement, the evolution of the discovery rule, and the advent of strict liability were primary agents in this "assault upon the citadel."' These developments have threatened many potential tort defendants, particularly members of the manufacturing and construction industries and the medical profession. In response to lobbying pressure from these groups, many state legislatures have adopted measures to limit tort recoveries. One of the measures most popular among defendants has been the enactment of statutes of repose, which restrict the time period in which a plaintiff can bring suit. Ultimately, a statute of repose may bar a plaintiff's claim even before his injury occurs.Statutes of repose are highly controversial and have become a subject of much litigation and commentary. In particular, these statutes have faced various constitutional attacks. This Note ex-mines the divergent approaches state courts have taken recently to statutes of repose and concludes that this diversity is appropriate in our federalist system. Part II of this Note defines a "statute of repose" and outlines the content of typical statutes in the products liability, construction, and medical malpractice areas. Part II also considers the principal arguments in favor of and against statutes of repose. Part III discusses the arguments and lines of analysis in three constitutional areas: equal protection, due process, and"open courts" or "access to courts." Part IV examines the effect of state constitutional law on statutes of repose and discusses possible directions courts may take in future decisions. Part IV then ad-dresses two of the major debates this issue raises: first, whether Congress should adopt a federal statute of repose, and, second, the degree of deference courts should show legislatures in this area. Part V concludes that the entire controversy surrounding statutes of repose ultimately concerns a choice between promoting economic interests and preserving individuals' rights of recovery, a choice that should be left to the states.