Mark J Tindall

89 Texas L. Rev. 729

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In this Note, Mr. Tindall addresses federal preemption of wrongful-death suits on behalf of illegal immigrants in Texas. Given the large number of illegal immigrants and the hazardous employment that they often find, there is a high likelihood that beneficiaries of illegal immigrants will bring wrongful-death lawsuits. Most damages resulting from such suits are based on the decedent’s lost earning capacity. But the decedent’s illegal immigrant status may bar an award of lost earning capacity, as defendants can raise this as a preemption defense. However, Tindall finds that existing federal immigration statutes, case law, and general preemption principles offer a possible solution.

To develop a more complete picture, Tindall looks at three recent Supreme Court cases. In these cases, the Court shifts from implied preemption, which, according to Tindall, suggests that it would not find a state tort claim preempted. So, to determine whether the Texas Wrongful Death Act (WDA) has been preempted, he argues for a two-pronged preemption test. Does the WDA create an obstacle for federal law (namely, the Immigration Reform and Control Act of 1986) and federal policy? And, if a conflict exists, does federal law preempt the WDA? Finally, according to this analysis, Tindall concludes that the Supreme Court would not hold that federal law preempts the Texas Wrongful Death Act. Rather, the Court’s reasoning will most likely split between answering the two questions of the two-pronged test.