Federal Tort Reform Legislation: Constitutionality and Summaries of Selected Statutes

Federal Tort Reform Legislation:
Constitutionality and Summaries
of Selected Statutes
Updated September 29, 2008
Henry Cohen and Vanessa K. Burrows
Legislative Attorneys
American Law Division



Federal Tort Reform Legislation:
Constitutionality and Summaries of Selected Statutes
Summary
This report considers the constitutionality of federal tort reform legislation, such
as the products liability and medical malpractice reform proposals that have been
introduced for the last several Congresses. Tort law at present is almost exclusively
state law rather than federal law, although, as noted in the appendix to this report,
Congress has enacted a number of tort reform statutes.
Part I of this report concludes that Congress has the authority to enact tort
reform legislation generally, under its power to regulate interstate commerce, and to
make such legislation applicable to intrastate torts, because tort suits generally affect
interstate commerce. However, it may be unconstitutional for tort reform legislation
to be applied to particular intrastate torts that do not substantially affect interstate
commerce.
In concluding that Congress has the authority to enact tort reform “generally,”
we refer to reforms that have been widely implemented at the state level, such as caps
on damages and limitations on joint and several liability and on the collateral source
rule. More specialized types of reforms are not necessarily immune from
constitutional challenge. For example, some state courts have struck down statutes
that provide that a portion of punitive damages awards must be paid to state funds
(although other state courts have upheld such statutes).
Part I also concludes that there would appear to be no due process or federalism
(or any other constitutional) impediments to Congress’s limiting a state common law
right of recovery. The only exception concerns requiring alternative dispute
resolution that limits the right to a jury trial.
Part II considers alternative dispute resolution alternatives, some of which could
have constitutional problems. The Seventh Amendment would preclude Congress
from eliminating the right to a jury trial in common law tort actions brought in
federal court. Congress may, however, eliminate the right to bring common law tort
actions in federal court, or eliminate common law tort actions themselves.
Congress apparently may create Article I tribunals, such as arbitration panels,
to hear tort claims, if it alters tort claims so that they are no longer traditional
common law actions (but rather are like no-fault workers’ compensation claims), or
if it allows de novo review by an Article III court, with the right to a jury trial, of
traditional common law tort actions (rather than allow merely traditional appellate
review). It apparently may also opt for a middle ground by altering the common law
cause of action somewhat but not wholly, and by pro-viding for something less than
de novo review by an Article III court, provided that the Article III court is not
required to be too deferential to the findings of the Article I tribunal.
Finally, a strong argument may be made that Congress has the power to
eliminate jury trials in tort actions brought in state court, but this is uncertain.



Contents
In troduction ......................................................1
Part I. Tort Reform Generally........................................1
A. Commerce Power...........................................1
B. Due Process...............................................4
C. Federalism................................................4
Part II. Alternative Dispute Resolution.................................7
A. Seventh Amendment........................................7
B. Article III.................................................9
C. Article III / Seventh Amendment Equivalence....................10
D. Applying Article III and the Seventh Amendment.................11
E. Constitutionality of Establishing Federal
Non-Article III Forums: Conclusion..........................15
F. Constitutionality of Prohibiting States from Using
Jury Trials, Without Establishment of
a Federal Non-Article III Forum .............................16
Part III. Conclusion...............................................18
A. Tort Reform Generally......................................18
B. Alternative Dispute Resolution...............................18
Appendix. Selected Federal Tort Reform Statutes.......................19
Employers Liability Act of 1908, 35 Stat. 65, c. 149..................19
Price-Anderson Act, 42 U.S.C. § 2210(e)..........................19
Atomic Testing Liability Act, 42 U.S.C. § 2212.....................19
Other Statutes that Substitute the United States as Defendant..........20
National Childhood Vaccine Injury Compensation Act of
1986 42 U.S.C. §§ 300aa-1 to 300aa-34.......................21
Comprehensive Environmental Response, Compensation,
and Liability Act (Superfund)...............................21
General Aviation Revitalization Act, P.L. 103-298 (1994),
49 U.S.C. § 40101 note....................................21
Cruise Ship Liability, P.L. 104-324, § 1129 (1996)...................21
Bill Emerson Good Samaritan Food Donation Act,
P.L. 104-210 (1996), 42 U.S.C. § 1791........................22
Volunteer Protection Act of 1997, P.L. 105-19 (1997),
42 U.S.C. §§ 14501-14505.................................23
Amtrak Reform and Accountability Act of 1997, P.L. 105-134,
§ 161 (1997), 49 U.S.C. § 28103.............................23
Aviation Medical Assistance Act of 1998, P.L. 105-170 (1998),
49 U.S.C. § 44701 note....................................23
Biomaterials Access Assurance Act of 1998, P.L. 105-230 (1998),
21 U.S.C. §§ 1601-1606...................................24
Y2K Act, P.L. 106-37 (1999), 15 U.S.C. §§ 6601-6617...............24
Cardiac Arrest Survival Act of 2000, P.L. 106-505, § 404 (2000),

42 U.S.C. § 238q.........................................24



49 U.S.C. § 44303(b)......................................25
September 11th Victim Compensation Fund of 2001,
49 U.S.C. § 40101 note....................................25
Paul D. Coverdell Teacher Protection Act of 2001,
P.L. 107-110, §§ 2361-2368................................26
Multiparty, Multiforum Trial Jurisdiction Act of 2002,
P.L. 107-273, § 11020.....................................26
Homeland Security Act of 2002, P.L. 107-296, §§ 304,
863, 890, 1201, 1402, and 1714-1717.........................27
SAFETY Act, P.L. 107-296, § 863...............................27
PROTECT Act, P.L. 108-21, § 305...............................27
Class Action Fairness Act of 2005, P.L. 109-2......................27
Protection of Lawful Commerce in Arms Act,
P.L. 109-92 (2005)........................................28
Public Readiness and Emergency Preparedness Act,
P.L. 109-148, Division C (2005).............................28
The Adam Walsh Child Protection and Safety Act of 2006,
P.L. 109-248.............................................29
Implementing Recommendations of the 9/11 Commission Act of
2007, 6 U.S.C. § 1104(c)...................................29
FISA Amendments Act of 2008..................................29



Federal Tort Reform Legislation:
Constitutionality and Summaries
of Selected Statutes
Introduction
This report considers the constitutionality of federal tort reform legislation, such
as the products liability and medical malpractice reform proposals that have been
introduced for the last several Congresses. A tort is a civil (as opposed to a criminal)
wrong, other than a breach of contract, that causes injury for which the victim may
sue to recover damages. Torts include negligent acts, such as medical malpractice,
and acts, such as selling defective products, for which one can be held strictly liable
(liable even in the absence of negligence). Tort law at present is almost exclusively
state law rather than federal law, although, as noted in the appendix to this report,
Congress has enacted a number of tort reform statutes.
Part I of this report concludes that enactment of tort reform legislation generally
would appear to be within Congress’s power to regulate commerce, and would not
appear to violate principles of due process or federalism. However, it may be
unconstitutional for tort reform legislation to be applied to particular intrastate torts
that do not substantially affect interstate commerce. In concluding that Congress has
the authority to enact tort reform “generally,” we refer to reforms that have been
widely implemented at the state level, such as caps on damages and limitations on
joint and several liability and on the collateral source rule. More specialized types
of reforms are not necessarily immune from constitutional challenge. For example,
some state courts have struck down statutes that provide that a portion of punitive
damages awards must be paid to state funds (although other state courts have upheld
such statutes).
Part II of this report considers alternative dispute resolution alternatives, some
of which could have constitutional problems. Part III is a conclusion. The report
ends with an appendix describing selected federal tort reform statutes.
Part I. Tort Reform Generally
A. Commerce Power
A federal statute is constitutional if it is enacted pursuant to a power of Congress
enumerated in the Constitution and if it does not contravene any provision of the
Constitution. The enumerated power pursuant to which federal tort reform could be
enacted is Congress’s power “To regulate Commerce with foreign Nations, and



among the several States” (Art. I, § 8, cl. 3).1 One might ask, however, whether tort
law is “commerce,” and, if it is, whether federal tort reform legislation would be
constitutional as applied to purely intrastate torts.
The Supreme Court has held that Congress’s power to regulate interstate
commerce includes the power to regulate any activity that “exerts a substantial effect
on interstate commerce” (Wickard v. Filburn, 317 U.S. 111, 125 (1942)), or is within
a “class of activities . . . within the reach of federal power” (Perez v. United States,
402 U.S. 146, 154 (1971) (emphasis in original)). Furthermore, “when Congress has
determined that an activity affects interstate commerce, the courts need inquire only
whether the finding is rational.” Hodel v. Virginia Surface Mining & Reclamation
Association, Inc., 452 U.S. 264, 277 (1981).2
The Supreme Court has held that the business of insurance constitutes interstate
commerce for purposes of the Commerce Clause (United States v. South-Eastern
Underwriters Association, 322 U.S. 533 (1944)), and, whether or not tort reform
would in fact substantially affect the business of insurance, it would not appear
irrational for Congress to conclude that it would. Consequently, there seems little
doubt that tort reform legislation, in general, would be within Congress’s commerce
power.
However, it may be unconstitutional for tort reform legislation to be applied to
particular intrastate torts that arguably do not substantially affect interstate
commerce. An example might be an assault by one individual upon another where
the assault has no connection with organized crime or any commercial activity. This
is because, in United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court, for
the first time since 1936, declared a federal statute unconstitutional for exceeding
Congress’s Commerce Clause authority. In Lopez, it struck down the Gun-Free
School Zones Act of 1990, which made it a federal offense “for any individual
knowingly to possess a firearm at a place that the individual knows, or has reasonable
cause to believe, is a school zone.”
The Court in Lopez “identified three broad categories of activity that Congress
may regulate under its commerce power. First, Congress may regulate the use of the
channels of interstate commerce.3 Second, Congress is empowered to regulate and


1 In addition, under its power to spend for the “general Welfare of the United States” (Art.
I, § 8, cl. 1), Congress may require the states to implement tort reform as a condition of their
acceptance of federal funds. South Dakota v. Dole, 483 U.S. 203, 206 (1987) (Congress
“may attach conditions on the receipt of federal funds, and has repeatedly employed the
power ‘to further broad policy objectives by conditioning receipt of federal moneys with
compliance by the recipient with federal statutory and administrative directives’”).
2 In United States v. Lopez, 514 U.S. 549, 559 (1995), the Supreme Court made clear that,
to be subject to federal regulation, an activity must “substantially affect” and not merely
“affect” interstate commerce.
3 This power enables Congress to regulate noncommercial activities that cross state lines.
Thus, in Caminetti v. United States, 242 U.S. 470 (1917), the Court upheld a federal statute
that it a crime knowingly to transport in interstate commerce “any woman or girl for the
(continued...)

protect the instrumentalities of interstate commerce, or things in interstate commerce,
even though the threat may come only from intrastate activities. Finally, Congress’s
commerce authority includes the power to regulate those activities having a
substantial relation to interstate commerce, i.e., those activities that substantially
affect interstate commerce.” Id. at 558-559 (citations omitted).
The Court in Lopez then noted that, if the Gun-Free School Zones Act of 1990
was “to be sustained, it must be under the third category as a regulation of an activity
that substantially affects interstate commerce.” Id. at 559. The act, however, had
“nothing to do with ‘commerce’ or any sort of economic enterprise . . . [and] is not
an essential part of a larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were regulated.” Id. at 561.
The same apparently could be said of some torts, such as the assault example
suggested above. But it does not appear that it could be said with respect to torts that
substantially affect commerce, such as the manufacture of defective products or
medical malpractice.
Since Lopez, the Supreme Court has decided two major cases on the reach of the
Commerce Clause. In United States v. Morrison, 529 U.S. 598 (2000), the Court
struck down a section of the Violence Against Women Act of 1994 that created a
federal cause of action against any person “who commits a crime of violence
motivated by gender,” whether interstate or intrastate. In striking down the
provision, the Court noted that “a fair reading of Lopez shows that the noneconomic,
criminal nature of the conduct at issue was central to our decision in that case” (id.
at 610), and “[g]ender-motivated crimes of violence are not, in any sense of the
phrase, economic activity.”4 Id. at 613.
In Lopez, the Court noted that “Congress normally is not required to make
formal findings as to the substantial burdens that an activity has on interstate
commerce.” 514 U.S. at 562. It added, however:
But to the extent that congressional findings would enable us to evaluate the
legislative judgment that the activity in question substantially affected interstate
commerce, even though no substantial effect was visible to the naked eye, they
are lacking here.
Id. at 563. In Morrison, the Court found Congress’s findings “substantially
weakened” by their reliance on a “but-for causal chain from the initial occurrence of
violent crime . . . to every attenuated effect upon interstate commerce.” 529 U.S. at

615.


3 (...continued)
purpose of prostitution or debauchery, or for any other immoral purpose,” even though the
statute, as interpreted by the Court, was not limited to “commercialized vice.” Id. at 484.
4 The Court added: “While we need not adopt a categorical rule against aggregating the
effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s
history our cases have upheld Commerce Clause regulation of intrastate activity only where
that activity is economic in nature.” Id. at 613. By contrast, the Court will uphold
Commerce Clause regulation of interstate activity that is not economic in nature; see note

3, supra.



The second recent major Supreme Court case on the reach of the Commerce
Clause was Gonzales v. Raich, 545 U.S. 1 (2005), which upheld the application of
the federal statute prohibiting the manufacture and possession of marijuana to the
intrastate cultivation and use of marijuana for medicinal purposes. The Court found
that there was a rational basis for concluding that the local cultivation and use of
marijuana, “taken in the aggregate, substantially affect[s] interstate commerce.” Id.
at 22. The Court distinguished Lopez and Morrison on the ground that those two
cases involved attempts to regulate activities that were not economic, whereas
marijuana is a commodity “for which there is an established, and lucrative, interstate
market,” and “[p]rohibiting the intrastate possession or manufacture of an article of
commerce is a rational (and commonly utilized) means of regulating commerce in
that product.” Id. at 26. Gonzales v. Raich appears to support Congress’ power to
regulate medical malpractice and products liability litigation, because the practice of
medicine and the manufacture of products are activities that constitute interstate
commerce, and it would be rational to conclude that litigation concerning these
activities substantially affects interstate commerce.
B. Due Process
At one time, it might plausibly have been suggested that limitations on tort
liability might violate the Fifth Amendment’s protection against federal deprivations
of property without due process of law. However, in 1978, the Supreme Court,
upholding the Price-Anderson Act’s limitation on liability for accidents resulting
from the operation of privately owned nuclear power plants, wrote:
Our cases have clearly established that “[a] person has no property, no vested
interest, in any rule of common law.” The “Constitution does not forbid the
creation of new rights, or the abolition of old ones recognized by the common
law, to attain a permissible legislative object,” despite the fact that “otherwise
settled expectations” may be upset thereby. Indeed, statutes limiting liability are
relatively commonplace and have consistently been enforced by the courts.
Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 88, n.32
(1978) (citations omitted).
In 1985, the Supreme Court, without written opinions, upheld the constitu-
tionality of California statutes that placed caps in medical malpractice cases on,
respectively, noneconomic damages and lawyers’ contingent fees.5
C. Federalism
In National League of Cities v. Usery, 426 U.S. 833, 855 (1976), the Supreme
Court held that the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., which
prescribes the federal minimum wage, could not constitutionally be applied to
employees of state and municipal governments. There was no contention that


5 Fein v. Permanente Medical Group, 38 Cal.3d 137, 211 Cal. Rptr. 368, 695 P.2d 665
(1985), appeal dismissed, 474 U.S. 892 (1985) (Justice White dissenting); Roa v. Lodi
Medical Group, Inc., 37 Cal.3d 920, 211 Cal. Rptr. 77, 695 P.2d 164 (1985), appeal
dismissed, 474 U.S. 990 (1985).

Congress’ commerce power was not broad enough to encompass this sort of
regulation. The contention, rather, which the Court accepted, was that the
Constitution contained an affirmative limitation on this exercise of the commerce
power. The Court did not name any particular provision of the Constitution as
imposing the limitation in this case, but did quote an earlier case that said that the
Tenth Amendment “expressly declares the constitutional policy that Congress may
not exercise power in a fashion that impairs the States’ integrity or their ability to
function effectively in a federal system.”6
In any event, the Court held that the Commerce Clause did not authorize
Congress “to directly displace the States’ freedom to structure integral operations in
areas of traditional governmental functions.” Id. at 852. The only example the Court
gave of an integral governmental function was the structuring of “employer-employee
relationships in such areas as fire prevention, police protection, sanitation, public
health, and parks and recreation.” Id. at 851. It added, however, that “[t]hese
examples are obviously not an exhaustive catalogue.” Id. at 851 n.16.
In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985),
the Court overruled National League of Cities, holding that the Fair Labor Standards
Act could be applied to state and municipal employees. It concluded that the
National League of Cities test for “integral operations in areas of traditional
governmental functions” had proven both “impractical and doctrinally barren,” and
that the Court in 1976 had “tried to repair what did not need repair.” Id. at 557. The
Court found that it had “no license to employ freestanding conceptions of state
sovereignty when measuring congressional authority under the Commerce Clause.”
Id. at 550. The Court did, however, “recognize that the States occupy a special and
specific position in our constitutional system and that the scope of Congress’
authority under the Commerce Clause must reflect that position.” Id. at 556.
Subsequently, the Court took a step back in the direction of National League of
Cities. In New York v. United States, 505 U.S. 144 (1992), the Court invalidated a
provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985
because it required states not participating in a regional waste disposal compact to
“take title” to waste or accept liability for generators’ damages. The Court readily
acknowledged that Congress may regulate the interstate market in disposal of low-
level radioactive waste, but noted that the Commerce Clause “authorizes Congress
to regulate interstate commerce directly; it does not authorize Congress to regulate
state governments’ regulation of interstate commerce.” Id. at 166.
The Court discussed two methods “by which Congress may urge a State to adopt
a legislative program consistent with federal interests. . . . First, under Congress’
spending power, ‘Congress may attach conditions on the receipt of federal funds.’
. . . Second, where Congress has the authority to regulate private activity under the
Commerce Clause, we have recognized Congress’ power to offer States the choice


6 426 U.S. at 843, quoting Fry v. United States, 421 U.S. 542, 547 n.7 (1975). The Tenth
Amendment states: “The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.”

of regulating that activity according to federal standards or having state law pre-
empted by federal regulation.” Id. at 167.
But if states decline to participate in a federal scheme, Congress may not force
them to do so; to have its way, Congress must preempt state law and regulate
directly. The “take title” provision, rather than presenting states with a choice
between regulatory participation or accepting federal preemption, required states to
choose “between two unconstitutionally coercive regulatory techniques . . . . Either
way, ‘the Act commandeers the legislative processes of the States by directly
compelling them to enact and enforce a federal regulatory program.’” Id. at 176.7
Under New York v. United States, the only significant federalism restraint on
exercise of the commerce power is that state regulatory processes may not be
“commandeered” for federal purposes; there is no federalism restraint on federal
regulation of businesses and individuals in areas traditionally regulated by states.
The fact that Congress has traditionally deferred in large measure to state regulation
of the insurance industry, for example, does not mean that Congress must continue
to do so; Congress does not invade areas reserved to the states by the Tenth
Amendment “simply because it exercises its authority . . . in a manner that displaces
the States’ exercise of their police powers.” Hodel v. Virginia Surface Mining &
Reclamation Association, Inc., 452 U.S. 264, 291 (1981) (upholding “steep slope”
and other federal regulations of surface mining in spite of traditional state role in
regulating land use).
In the case of federal tort reform proposals such as reducing awards by amounts
recovered from collateral sources, Congress would not be commandeering state
regulatory processes. Congress would merely be enacting federal law that preempted
substantive state law, and requiring states to enforce the federal law. In New York v.
United States, the Court cited four cases that discuss “the well established power of
Congress to pass laws enforceable in state courts.” Id. at 178. The Court added:
These cases involve no more than an application of the Supremacy Clause’s
provision that federal law “shall be the supreme Law of the Land,” enforceable
in every State. More to the point, all involve congressional regulation of indi-
viduals, not congressional requirements that States regulate. Federal statutes
enforceable in state courts do, in a sense, direct state judges to enforce them, but
this sort of federal “direction” of state judges is mandated by the text of the
Supremacy Clause.
Id. at 178-179. One of the four cases the Supreme Court cited, Second Employers’
Liability Cases, 223 U.S. 1 (1912), involved what today would be called tort reform.
The case was a challenge to the Employers’ Liability Act of 1908, which regulated
the liability of common carriers by railroad to their employees; it was essentially a
federal workers’ compensation statute that preempted state tort law by, among other
things, its “abrogation of the fellow-servant rule, the extension of the carrier’s
liability to cases of death, and the restriction of the defenses of contributory


7 Subsequently, in Printz v. United States, 521 U.S. 898, 935 (1997), the Court held that
Congress may not “circumvent” the prohibition on commandeering a state’s regulatory
processes “by conscripting the State’s officers directly.”

negligence and assumption of risk . . . .” Id. at 49. One question before the Supreme
Court was “whether rights arising under the congressional act may be enforced, as
of right, in the courts of the States when their jurisdiction, as prescribed by local
laws, is adequate to the occasion.” Id. at 55. The Court answered the question as
follows:
When Congress, in the exertion of the power confided to it by the Constitution,
adopted that act, it spoke for all the people and all the States, and thereby
established policy for all. That policy is as much the policy of Connecticut as it
the act had emanated from its own legislature, and should be respected
accordingly in the courts of the State. Id. at 57.
Part II. Alternative Dispute Resolution
One tort reform that may be considered by Congress is to require that tort
claims — particularly medical malpractice claims — be decided by alternative
dispute resolution (ADR) procedures, such as binding arbitration, rather than by
traditional jury trials. When Congress creates a federal cause of action, it is generally8
free to prescribe any procedure for its enforcement, with or without a jury trial.
Traditional tort actions, however, such as medical malpractice and products liability,
are not federal causes of action; they are governed by state law, even when they are
brought in federal court on diversity grounds.9 State laws generally provide for jury10
trials in tort cases brought in state courts, and the Seventh Amendment to the
United States Constitution generally provides for jury trials of cases arising under11
state law that are brought in federal court. The question has arisen, therefore, as to
the extent to which the Constitution permits Congress to require alternative dispute
resolution, in federal or state forums, of tort claims arising under state law.
A. Seventh Amendment
If Congress were to require ADR procedures in lieu of jury trials, then the
Seventh Amendment would become a consideration. The Seventh Amendment
guarantees the right to trial by jury “In Suits at common law, where the value in


8 “[W]hen Congress creates new statutory ‘public rights,’ it may assign their adjudication
to an administrative agency with which a jury trial would be incompatible, without violating
the Seventh Amendment’s injunction that jury trial is to be ‘preserved’ in ‘suits at common
law.’” Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51 (1989).
9 Suits based on state law may be brought in federal court only if the matter in controversy
exceeds $75,000 and the plaintiff and defendant are domiciled in different states. This is
known as “diversity of citizenship.” 28 U.S.C. § 1332.
10 “The constitutions of 48 states . . . have civil jury provisions roughly analogous in form
and substance to the seventh amendment.” Paul B. Weiss, Reforming Tort Reform: Is There
Substance to the Seventh Amendment?, 38 Catholic University Law Review 737, 739
(1989).
11 Simler v. Connor, 372 U.S. 221 (1963).

controversy shall exceed twenty dollars.”12 Tort actions are suits at common law, so
the Seventh Amendment applies to them.13 However, the Seventh Amendment,
unlike most of the Bill of Rights, does not apply in state courts,14 where most tort
actions are brought. It does apply, however, to cases arising under state law that are
brought in federal court on diversity grounds.15
Therefore, Congress may not eliminate the right to a jury trial in common law
tort actions brought in federal court. It may, however, eliminate the right to bring
common law tort actions in federal court. One way to do this would be to abolish
diversity jurisdiction in tort suits; i.e., to prohibit tort suits arising under state law
from being brought in federal courts.16 Another way would be to alter tort suits to the
point that they could no longer be considered “Suits at common law” to which the
Seventh Amendment would apply.
Congress has done the latter with respect to torts inflicted upon federal workers
in the workplace. The Federal Employees’ Compensation Act, 5 U.S.C. §§ 8101 et
seq., provides for compensation to federal employees for disability or death resulting
from work-related injuries, whether the result of a tort or otherwise. Employees can
recover without proof of fault on the part of the government or its employees, but are
prohibited from bringing a tort action arising under state law against the government
or its employees.17 An injured employee seeking recovery must file a claim with the
Secretary of Labor, who determines whether the employee is entitled to an award.
There is no right to a jury trial, nor to judicial review. The Supreme Court has held
that such an arrangement does not violate the Seventh Amendment because it
“abolishes all right of recovery in ordinary cases, and therefore leaves nothing to be
tried by jury.”18


12 “Common law” refers to law created by state courts, on a case-by-case basis.
13 This does not mean that juries must operate exactly as they did at common law. In
Colgrove v. Battin, 413 U.S. 149 (1973), the Supreme Court upheld rules adopted in a
federal district court authorizing civil juries composed of six persons. By the reference in
the Seventh Amendment to the “common law,” the Court wrote, “the Framers of the Seventh
Amendment were concerned with preserving the right of trial by jury in civil cases where
it existed at common law, rather than the various incidents of trial by jury.” Id. at 155-156
(emphasis in original). Presumably, allowing a less than unanimous verdict would also be
permissible, even though a unanimous verdict was required at common law.
14 Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211 (1916). The Seventh
Amendment does apply in District of Columbia courts. Capital Traction Co. v. Hof, 174
U.S. 1, 5 (1899).
15 Simler v. Connor, supra note 11.
16 Congress, pursuant to the Constitution (Art. III, § 1) “may from time to time ordain and
establish,” and hence limit the jurisdiction of, “inferior” federal courts. (Art. I, § 3, directly
establishes the Supreme Court.)
17 See 5 U.S.C. § 8116(c) (United States’ liability under FECA is exclusive); 28 U.S.C.
§ 2679(b)(1) (federal employees are immune from tort actions arising under state law).
18 Mountain Timber Co. v. Washington, 243 U.S. 219, 235 (1917).

It appears, therefore, that Congress may prohibit common law tort suits from
being brought in federal court, but may not take the less radical step of allowing them
to be brought in federal court but prohibiting them from being heard by juries. If
Congress may not require common law tort suits to be heard by a federal court
without a jury, then it also may not require them to be decided by a federally
established arbitration panel or other federally established non-judicial forum.19 To
do so would violate not only the Seventh Amendment; it would violate Article III of
the Constitution.
B. Article III
Article III, section 1, provides that the judicial power of the United States shall
be vested in one supreme court, and in such inferior courts as Congress may
establish, and that the judges of both the supreme and inferior courts shall hold life
tenure “during good Behavior,” at an irreducible compensation. Federal courts
created under this provision are commonly known as “Article III courts.” In addition,
however, Congress, pursuant to its powers enumerated in Article I, may establish
Article I “legislative” courts in “specialized areas having particularized needs and
warranting distinctive treatment.”20 Article I judges need not be granted life tenure
or irreducible salaries.
However, since only Article III courts may exercise the judicial power of the
United States, Congress’ power to create Article I courts is limited to the above
“specialized areas.” Except in these areas, Congress may not provide for federal
judicial power to be exercised by federally established arbitration panels, or by any
federal forum other than an Article III court.
In Northern Pipeline Construction Co. v. Marathon Pipeline Co., the Supreme
Court “identified three situations in which Art. III does not bar the creation of
legislative courts.”21 These three situations are territorial courts, military courts, and
courts created to adjudicate cases involving “public rights.”22 With respect to the
third situation, Marathon elaborated:
[A] matter of public rights must at a minimum arise “between the government
and others.” In contrast, “the liability of one individual to another under the law
as defined,” is a matter of private rights. Our precedents clearly establish that
only controversies in the former category may be removed from Art. III courts
and delegated to legislative courts or administrative agencies for their
determination. Private-rights disputes, on the other hand, lie at the core of the23


historically recognized judicial power.
19 Whether Congress may require the use of non-federally established arbitration panels is
considered in Section F, below.
20 Palmore v. United States, 411 U.S. 389, 408 (1973).
21 458 U.S. 50, 70 (1982).
22 Id. at 64-70.
23 Id. at 69-70 (emphasis in original; citations omitted).

Subsequently, the Court rejected the notion that public rights must at a
minimum arise between the government and others.24 In Granfinanciera, S.A. v.
Nordberg, the Court wrote:
The crucial question, in cases not involving the Federal Government, is whether
“Congress, acting for a valid legislative purpose pursuant to its constitutional
powers under Article I, [has] create[d] a seemingly ‘private’ right that is so
closely integrated into a public regulatory scheme as to be a matter appropriate
for agency resolution with limited involvement by the Article III judiciary.” If
a statutory right is not closely intertwined with a federal regulatory program
Congress has power to enact, and if that right neither belongs to nor exists
against the Federal Government, then it must be adjudicated by an Article III25
court.
C. Article III / Seventh Amendment Equivalence
The constitutional problem with placing common law tort actions in an Article
I tribunal is equivalent to the constitutional problem with denying jury trials in such
cases. In Granfinanciera, S.A. v. Nordberg, the Court noted that Congress cannot
conjure away the Seventh Amendment by mandating that traditional legal [i.e.,
common law] claims be . . . taken to an administrative tribunal. In certain
situations, of course, Congress may fashion causes of action that are closely
analogous to common-law claims and place them beyond the ambit of the
Seventh Amendment by assigning their resolution to a forum in which jury trials
are unavailable. Congress’ power to do so is limited, however, just as its power26
to place adjudicative authority in non-Article III tribunals is circumscribed.
That is, the situations in which Congress may deny the right to a jury trial are
the same situations in which Congress may place a matter outside of an Article III
court. In the Court’s words:
[I]f a statutory cause of action is legal [i.e., common law] in nature, the question
whether the Seventh Amendment permits Congress to assign its adjudication to
a tribunal that does not employ juries as factfinders requires the same answer as
the question whether Article III allows Congress to assign adjudication of that
cause of action to a non-Article III tribunal. . . . [I]f the action must be tried
under the auspices of an Article III court, then the Seventh Amendment affords
the parties a right to a jury trial whenever the cause of action is legal [i.e.,
common law] in nature. Conversely, if Congress may assign the adjudication of
a statutory cause of action to a non-Article III tribunal, then the Seventh
Amendment poses no independent bar to the adjudication of that action by a27


nonjury factfinder.
24 Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 586 (1985).
25 492 U.S. 33, 54-55 (1989) (citation omitted).
26 Id. at 52 (emphasis in original; citations omitted).
27 Id. at 53-54.

D. Applying Article III and the Seventh Amendment
Whether a federal statute requiring tort claims to be decided by an Article I
tribunal would violate Article III, and whether it would violate the Seventh
Amendment, amount to the same question. But what is the answer? Before
examining some Supreme Court decisions that may shed light on it, we should
emphasize that the question arises only if Congress were to establish a federal non-
Article III forum to hear traditional tort claims. If Congress instead were simply to
prohibit states from using jury trials in tort cases, but did not establish an Article I
forum for such cases, then it might raise another constitutional issue (which is
discussed in Section F, below) but it would not raise an Article III / Seventh
Amendment issue.28 This is because state courts were created pursuant to state laws
or constitutions and do not exercise federal judicial power, and because the Seventh
Amendment does not apply to them.
But to what extent may Congress require that tort claims be decided by an
Article I tribunal? In Thomas v. Union Carbide Agricultural Products Co., the
Supreme Court noted that Northern Pipeline had established “that Congress may not
vest in a non-Article III court the power to adjudicate, render final judgment, and
issue binding orders in a traditional contract action arising under state law, without
consent of the litigants, and subject only to ordinary appellate review.”29 The same
undoubtedly applies to traditional tort actions arising under state law. However, this
quotation suggests that Congress may vest tort claims in a non-Article III forum if it
does at least one of two things: (1) alters tort claims so that they are no longer
traditional common law actions, or (2) allows de novo review, with the right to a jury
trial, of traditional common law tort actions, rather than allow merely traditional
appellate review. In other words, Congress apparently may require that traditional
common law tort actions initially be heard in a federal non-Article III forum, without
a jury, provided it allows a dissatisfied party to then seek a jury trial.30 However, if
Congress wishes to limit judicial review of tort claims, then it apparently must alter
tort claims so that they are no longer traditional common law tort actions.
To what extent must Congress alter tort claims in order to place them in a non-
Article III forum and not provide de novo review? In Granfinanciera, the Court held
that “Congress may fashion causes of action that are closely analogous to common-
law claims and place them beyond the gambit of the Seventh Amendment” if, in
cases not involving the federal government, the private right that Congress creates
“is so closely integrated into a public regulatory scheme as to be a matter appropriate


28 Prohibiting states from using jury trials in tort cases, without establishing a federal forum
to decide such cases, might be done in various ways, such as by requiring binding arbitration
or by allowing ordinary state court trials but requiring that judges be factfinders.
29 473 U.S. 568, 584 (1985).
30 In the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C.
§§ 300aa-1 — 300aa-34, Congress required that vaccine-related injury claims be heard by
a special master designated by the United States Claims Court. However, the statute both
alters the traditional common law action to a no-fault claim with limited recovery, and
allows a dissatisfied claimant to bring a traditional state tort action, with some
modifications.

for agency resolution with limited involvement by the Article III judiciary.”31 In
Thomas, the Court indicated that such limited involvement may consist in judicial
review that is something less than de novo review with the right to a jury trial.
In Thomas, the Court rejected the notion that a matter of public rights must at
a minimum arise between the government and others.32 Instead, it held “that practical
attention to substance rather than doctrinaire reliance on formal categories should
inform application of Article III.”33 Thomas involved a provision of the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136 et seq. FIFRA
requires manufacturers, as a precondition for registration of a pesticide, to submit
research data to the Environmental Protection Agency (EPA) concerning the
product’s health, safety, and environmental effects. Congress wished to allow the
EPA to consider data submitted by one registrant to support the registration of the
same or a similar product by another registrant, and therefore “provided statutory
authority for the use of previously submitted data as well as a scheme for sharing the
costs of data generation.”34 In order to avoid a “logjam of litigation that resulted
from controversies over data compensation,” Congress provided for “a system of
negotiation and binding arbitration to resolve compensation disputes among
registrants.”35 “The arbitrator’s decision is subject to judicial review only for ‘fraud,
misrepresentation, or other misconduct.’”36
The Court considered several factors in determining that an Article III tribunal
was not required to resolve these disputes. It found mandatory binding arbitration
permissible in part because the right to compensation for shared data “does not
depend on or replace a right to . . . compensation under state law.”37
The right created by FIFRA is not purely a “private” right, but bears many of the
characteristics of a “public” right. Use of a registrant’s data to support a follow-
on [i.e., subsequent] registration serves a public purpose as an integral part of a
program safeguarding the public health. Congress has the power, under Article
I, to authorize an agency administering a complex regulatory scheme to allocate
costs and benefits among voluntary participants in the program without providing38
an Article III adjudication.
Thus, to use the words of the Court in Granfinanciera a few years later, Thomas
involved a private right that was “closely integrated into a public regulatory


31 492 U.S. at 52, 54.
32 473 U.S. at 586.
33 Id. at 587.
34 Id. at 572.
35 Id. at 573.
36 Id. at 573-574.
37 Id. at 584.
38 Id. at 589.

scheme.”39 In addition, the Court in Thomas cited the fact that “no unwilling
defendant is subjected to judicial enforcement power as a result of the agency
‘adjudication,’”40 and that FIFRA, while it limits judicial review, it “does not
preclude review of the arbitration proceeding by an Article III court.”41
In Commodity Futures Trading Commission v. Schor, the Supreme Court again
emphasized that, in determining whether an Article III tribunal is required, it
has declined to adopt formalistic and unbending rules. Although such rules
might lend a greater degree of coherence to this area of law, they might also
unduly restrict Congress’ ability to take needed and innovative action pursuant
to its Article I powers. Thus, in reviewing Article III challenges, we have
weighed a number of factors, none of which has been deemed determinative,
with an eye to the practical effect that the congressional action will have on the42
constitutionally assigned role of the federal judiciary.
The opinion in Schor reveals how nonformalistic the Court’s approach is in this
area:
Among the factors upon which we have focused are the extent to which the
“essential attributes of judicial power” are reserved to Article III courts, and,
conversely, the extent to which the non-Article III forum exercises the range of
jurisdiction and powers normally vested only in Article III courts, the origins and
importance of the right to be adjudicated, and the concerns that drove Congress43
to depart from the requirements of Article III.
The Court in Schor upheld a congressional grant of adjudicatory powers to a
federal agency, the Commodity Futures Trading Commission (CFTC). The Court
emphasized that the CFTC’s
adjudicatory powers depart from the traditional agency model in just one respect:
the CFTC’s jurisdiction over common law counterclaims. . . . Aside from its
authorization of counterclaim jurisdiction, the [statute] leaves far more of the
“essential attributes of judicial power” to Article III courts than did that portion44
of the Bankruptcy Act found unconstitutional in Northern Pipeline.
Specifically, CFTC orders are reviewed under the “weight of the evidence”
standard, “rather than the more deferential standard found lacking in Northern


39 492 U.S. at 54.
40 473 U.S. at 591.
41 Id. at 592.
42 478 U.S. 833, 851 (1986) (citations omitted).
43 Id.
44 Id. at 852.

Pipeline.” Furthermore, “[t]he legal rulings of the CFTC . . . are subject to de novo
review.”45
In Northern Pipeline the Court found unconstitutional the delegation to an
Article I tribunal — the United States Bankruptcy Court — of the adjudication of the
right to recover contract damages. Although discharge in bankruptcy “may well be
a ‘public right’” and if it is may be delegated to an Article I court, the right to recover
contract damages is a state-created private right and as such may not be delegated to
an Article I court.46 In response to the argument that “the bankruptcy court is merely
an ‘adjunct’ to the district court, and that the delegation of certain adjudicative
functions to the bankruptcy court is accordingly consistent with the principle that the
judicial power of the United States must be vested in Art. III courts,”47 the Supreme
Court observed that “the judgments of the bankruptcy courts are apparently subject
to review only under the more deferential ‘clearly erroneous’ standard.”48 Such
limited review gave the bankruptcy courts more power than was permissible for an
“adjunct.”
In Granfinanciera, the Court held that the Seventh Amendment requires a jury
trial in a suit by a trustee in bankruptcy to recover an allegedly fraudulent monetary
transfer. It reached this conclusion because
a bankruptcy trustee’s right to recover a fraudulent conveyance under 11 U.S.C.
§ 548(a)(2) seems to us more accurately characterized as a private right rather
than a public right as we have used those terms in our Article III decisions. In
Northern Pipeline Construction Co. . . . the plurality noted that . . . state-law
causes of action for breach of contract or warranty are paradigmatic private
rights, even when asserted by an insolvent corporation in the midst of Chapter49

11 reorganization proceedings.


It was not sufficient that Congress had “reclassified a pre-existing, common-law
cause of action. . . . Congress cannot eliminate a party’s Seventh Amendment right
to a jury trial merely by relabeling the cause of action to which it attaches and placing
exclusive jurisdiction in an administrative agency or a specialized court of equity.”50
“Nor,” the Court added, “can Congress’ assignment be justified on the ground
that jury trials of fraudulent conveyance actions would ‘go far to dismantle the
statutory scheme,’ or that bankruptcy proceedings have been placed in ‘an51
administrative forum with which the jury would be incompatible.’”


45 Id. at 853.
46 458 U.S. at 71.
47 Id. at 77.
48 Id. at 85.
49 492 U.S. at 55-56.
50 Id. at 60-61.
51 Id. at 61 (citations omitted).

Furthermore, “[i]t may be that providing jury trials in some fraudulent
conveyance actions . . . would impede swift resolution of bankruptcy proceedings and
increase the expense of Chapter 11 reorganizations. But ‘these considerations are
insufficient to overcome the clear command of the Seventh Amendment.’”52
E. Constitutionality of Establishing
Federal Non-Article III Forums: Conclusion
In Thomas, the Court upheld the use of a non-Article III forum because, among
other things, the right created was “not purely a ‘private’ right,” and limited judicial
review by an Article III court was permitted.53 In Schor, the Court upheld the use of
a non-Article III forum because, among other things, its adjudicatory powers over
common law actions were limited, its orders were reviewed by an Article III court
under a relatively non-deferential standard, and its legal rulings were subject to de
novo review.
In Northern Pipeline, the Court struck down the use of an Article I forum
because it was allowed to decide state-created private rights, and its decisions were
subject only to deferential judicial review. In Granfinanciera, the Court struck down
the use of an Article I forum because the right that was adjudicated was a private
right.
These cases show that, as the Court wrote in Schor, “in reviewing Article III
challenges, we have weighed a number of factors, none of which has been deemed
determinative, with an eye to the practical effect that the congressional action will54
have on the constitutionally assigned role of the federal judiciary.” However, the
major factors appear to be the extent to which the cause of action constitutes a private
right, and the degree of review by an Article III tribunal that is provided. If a cause
of action is a traditional common law cause of action, not closely integrated into a
federal regulatory scheme, then de novo review by an Article III court, with a jury
trial, would apparently be required. If the cause of action is altered somewhat, but
still resembles a common law action, then something less than de novo review by an
Article III court might be adequate, provided the Article III court is not required to
be too deferential to the finding of the non-Article III forum. If the cause of action
is altered to the point that it no longer resembles a common law tort, and is closely
integrated into a federal regulatory scheme, then adjudication by an Article I forum,
without judicial review, may be permissible. It does not seem possible to be more
specific than this, as “bright-line rules cannot effectively be employed to yield broad
principles applicable to all Article III inquiries.”55


52 Id. at 63.
53 473 U.S. at 589.
54 478 U.S. at 851.
55 Id. at 857.

F. Constitutionality of Prohibiting States
from Using Jury Trials, Without Establishment
of a Federal Non-Article III Forum
As noted above, if Congress were to prohibit the states from using jury trials in
tort cases, but did not establish a federal non-Article III forum to hear such cases,
then it would raise no Article III / Seventh Amendment issue, but it would raise
another constitutional issue. This issue is whether Congress, even where it would
otherwise have the power to regulate under the Commerce Clause, may alter the
procedures that state courts use to adjudicate state causes of action. In New York v.
United States, discussed at page 5, above, the Court prohibited Congress from using
its commerce power to commandeer state regulatory processes. Although, as noted,
this restriction would not seem to preclude Congress from preempting substantive
state law, it might be argued that eliminating jury trials, constituting as it would an
interference with state court procedure, might amount to commandeering state
regulatory processes.
This distinction between substance and procedure also finds support in the
Supreme Court’s approach to diversity cases, which are cases arising under state law
which, because they are between citizens of different states and the amount in
controversy exceeds $50,000, may be heard in federal court. 28 U.S.C. § 1332. In
Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1937), the Supreme Court held that,
in diversity cases, a federal court is bound by the substantive, as opposed to the
procedural, law of the state in which it sits, “whether the law of the State shall be56
declared by its Legislature in a statute or by its highest court in a decision.”
In Guaranty Trust Co. v. New York, 326 U.S. 99 (1945), the Supreme Court held
that statutes of limitations are substantive for this purpose, and that therefore federal
courts must apply state statutes of limitations in diversity cases. By “substantive,”
the Court meant that the statute could substantially affect the outcome of the
litigation. A statute of limitations can substantially affect the outcome of litigation
because it can preclude an action from even being brought. By contrast, the right to
a jury trial does not have a comparably substantial effect, because in a non-jury trial
a judge presumably applies the same law to the same facts as a jury would in a jury
trial.
In diversity cases, “[i]t is now clear that federal law determines whether there
is a right to a jury trial in a case in federal court and that state law is wholly57
irrelevant.” Although the Seventh Amendment, rather than the substan-
tive/procedural distinction, is the main factor here, one could nevertheless argue that,
if federal courts may use the federal rule with respect to jury trials of state causes of


56 In Kline v. Wheels by Kinney, Inc., 464 F.2d 184, 187 (4th Cir. 1972), a federal court
wrote: “With no North Carolina case directly on point, our judicial chore is to ‘determine
the rule that the North Carolina Supreme Court would probably follow, not fashion a rule
which we, as an independent federal court, might consider best.’”
57 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE : CIVIL § 2303.

action, then state courts may not be preempted from using their own rules with
respect to jury trials of state causes of action.
In addition, “[t]he general rule, bottomed deeply in belief in the importance of
state control of state judicial procedure, is that federal law takes the state courts as
it finds them. For example, state rules about the ways in which claims for relief, or
defenses, or counter-defenses, must be asserted may ordinarily be applied also to
federal claims and defenses and counter-defenses, providing only that the rules are
not so rigorous as, in effect, to nullify the asserted rights.”58
This general rule seems to have operated in a 1950 case in which the Supreme
Court held that a state may “deny access to its courts to persons seeking recovery
under the Federal Employers’ Liability Act if in similar cases the State for reasons
of local policy denies resort to its courts and enforces its policy impartially . . . so as
not to involve a discrimination against Employers’ Liability Act suits . . . .”59
There is an apparently strong argument, however, in support of Congress’ power
to eliminate jury trials in state causes of action heard in state courts. The Supreme
Court has held that section 2 of the Federal Arbitration Act, 9 U.S.C. § 2, preempts
conflicting state law. This statute provides that agreements to arbitrate “shall be
valid, irrevocable, and enforceable,” and thus effectively eliminates the right to a jury
trial in some state cases. In Southland Corp. v. Keating, 465 U.S. 1, 11 (1984), the
Supreme Court found that “[t]he Federal Arbitration Act rests on the authority of
Congress to enact substantive rules under the Commerce Clause,” and that it
preempted a state statute that had been interpreted to require judicial consideration
of claims brought under a state statute. In Perry v. Thomas, 482 U.S. 483 (1987), and
in Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681 (1996), the Supreme Court
again found the Federal Arbitration Act to preempt conflicting state law. If Congress
can eliminate judicial consideration of a case, then arguably it can eliminate jury
consideration while retaining judicial consideration.


58 Hart, The Relations Between State and Federal Law, 54 Columbia Law Review 489, 508
(1954). The Supreme Court has qualified this rule, writing: “Federal law takes state courts
as it finds them only insofar as those courts employ rules that do not ‘impose unnecessary
burdens upon rights of recovery authorized by federal laws.’” Felder v. Casey, 487 U.S. 131,
150 (1988). However, federal rights of recovery would not be at issue if Congress sought
to eliminate jury trials of state tort claims, and the Court’s qualification would be irrelevant
in such a case.
59 Missouri ex rel. Southern Railway Co. v. Mayfield, 340 U.S. 1, 4 (1950). The Court
continued, however: “No such restriction is imposed upon the States merely because the
Employers’ Liability Act empowers their courts to entertain suits arising under it,” thus not
addressing the issue of the constitutionality of Congress’ imposing such a restriction.

Part III. Conclusion
A. Tort Reform Generally
Congress has the authority to enact tort reform legislation generally, under its
power to regulate interstate commerce, and to make such legislation applicable to
intrastate torts, because tort suits generally affect interstate commerce. However, it
may be unconstitutional for tort reform legislation to be applied to particular
intrastate torts that arguably do not substantially affect interstate commerce.
There would appear to be no due process or federalism (or any other
constitutional) impediments to Congress’ limiting a state common law right of
recovery. The only exception concerns requiring alternative dispute resolution that
limits the right to a jury trial.
B. Alternative Dispute Resolution
The Seventh Amendment would preclude Congress from eliminating the right
to a jury trial in common law tort actions brought in federal court. Congress may,
however, eliminate the right to bring common law tort actions in federal court, or
eliminate common law tort actions themselves.
Congress apparently may create Article I tribunals, such as arbitration panel, to
hear tort claims, if it alters tort claims so that they are no longer traditional common
law actions (but rather are like no-fault workers’ compensation claims), or if it allows
de novo review by an Article III court, with the right to a jury trial, of traditional
common law tort actions (rather than allow merely traditional appellate review). It
apparently may also opt for a middle ground by altering the common law cause of
action somewhat but not wholly, and by providing for something less than de novo
review by an Article III court, provided that the Article III court is not required to be
too deferential to the findings of the Article I tribunal.
Finally, a strong argument may be made that Congress has the power to
eliminate jury trials in tort actions brought in state court, but this is uncertain.



Appendix. Selected Federal Tort Reform Statutes
Employers Liability Act of 1908, 35 Stat. 65, c. 149
This statute regulated the liability of common carriers by railroad to their
employees; it was essentially a federal workers’ compensation statute that preempted
state tort law by, among other things, its “abrogation of the fellow-servant rule, the
extension of the carrier’s liability to cases of death, and the restriction of the defenses
of contributory negligence and assumption of risk . . . .” Mondou v. New York, N.H.
& H.R. Co., 223 U.S. 1, 49 (1912). In this case, the Supreme Court upheld the
constitutionality of the statute, including the power of Congress to regulate
commerce to override state tort law. The Court wrote:
When Congress, in the exertion of the power confided to it by the Constitution,
adopted that act, it spoke for all the people and all the States, and thereby
established policy for all. That policy is as much the policy of Connecticut as it
the act had emanated from its own legislature, and should be respected
accordingly in the courts of the State. Id. at 57.
Price-Anderson Act, 42 U.S.C. § 2210(e)
This statute limits the tort liability of Nuclear Regulatory Commission licensees
(such as nuclear power plants) and Department of Energy nuclear contractors for a
single “nuclear incident.” For example, for nuclear power plants, the liability limit
is pegged to the amount of financial protection required of the licensee under a two-
tiered system of privately available insurance plus industrywide pro-rata
contributions. That total, including a 5 percent “surcharge” provided for in the act,
is currently $9.09 billion.
In Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 88,
n.32 (1978), the Supreme Court upheld the constitutionality of the act, writing:
Our cases have clearly established that “[a] person has no property, no vested
interest, in any rule of common law.” The “Constitution does not forbid the
creation of new rights, or the abolition of old ones recognized by the common
law, to attain a permissible legislative object,” despite the fact that “otherwise
settled expectations” may be upset thereby. Indeed, statutes limiting liability are
relatively commonplace and have consistently been enforced by the courts
[citations omitted].
Atomic Testing Liability Act, 42 U.S.C. § 2212
This 1990 statute, which reenacted the Warner Amendment, § 1631 of P.L. 98-
525 (1984), made the Federal Tort Claims Act the exclusive remedy for suits against
government contractors who carried out atomic weapons testing programs that
caused injury or death due to exposure to radiation. In other words, this law
immunized the contractors from liability under state tort law and made the United



States liable in their place.60 Two federal courts of appeals upheld the
constitutionality of the Warner Amendment.61
Other Statutes that Substitute the United States as Defendant
The Atomic Testing Liability Act is only one of many statutes that substitute the
United States as the defendant in place of a private entity or person in suits arising
under state tort law. The Federal Tort Claims Act itself immunizes federal
employees from suits under state tort law for acts committed within the scope of
employment. 28 U.S.C. § 2679(b)(1). The National Swine Flu Immunization
Program of 1976, P.L. 94-380, made the United States liable for injuries arising out
of the administration of the swine flu vaccine to the extent that vaccine
manufacturers or distributors would be liable under state law, though it allowed the
United States, if it paid any claim, to sue a vaccine manufacturer or distributor whose
negligent conduct had caused the injury giving rise to such claim.62
Congress has also enacted more than 50 statutes that provide that various non-
federal individuals or entities shall be treated as federal employees for purposes of
liability.63 These statutes generally apply to volunteers with various federal
programs, including federally funded medical clinics and their officers and
employees, “free clinic health professionals,”64 members and personnel of the
National Gambling Impact Study Commission, Peace Corps volunteers, and
volunteers under the Volunteers in the National Forests Act of 1972 and the
Volunteers in the Parks Act of 1969. A recent enactment of this type of provision
was section 304 of the Homeland Security Act of 2002, Public Law 107-296, which
treats manufacturers and administrators of smallpox vaccine as federal employees for
liability purposes.
Volunteers and entities covered by these statutes and others may not be sued for
torts committed within the scope of their employment, but victims of their negligence
may sue the United States under the Federal Tort Claims Act. The United States’


60 As it happened, because of exceptions in the Federal Tort Claims Act, the United States
could not be held liable, and Congress as a consequence enacted the Radiation Exposure
Compensation Act, 42 U.S.C. § 2210 note, a compensation program for individuals exposed
to radiation between specified dates in 1951 and 1962.
61 In re Consolidated United States Atmospheric Testing Litigation, 820 F.2d 982 (9th Cir.

1987), cert. denied, 485 U.S. 905 (1988); Hammond v. United States, 786 F.2d 8 (lst Cir.


1986).


62 The Swine Flu law made the United States liable not only for the negligence but for the
strict liability of manufacturers and distributors, even though the United States ordinarily
may not be held strictly liable under the Federal Tort Claims Act, regardless of state law.
63 Many of these statutes are listed in CRS Report 97-579, Making Private Entities and
Individuals Immune from Tort Liability by Declaring them Federal Employees, by Henry
Cohen.
64 For additional information on these first two categories, see CRS Report RS20984, Public
Health Service Act Provisions Providing Immunity from Medical Malpractice Liability, by
Henry Cohen.

liability, however, is limited in various ways. The United States may not, for
example, be held liable for discretionary functions (i.e., policy decisions), or for
punitive damages.
National Childhood Vaccine Injury Compensation Act of 1986
42 U.S.C. §§ 300aa-1 to 300aa-34
This statute prohibits suits under state tort law against manufacturers and
administrators of specified vaccines unless the claimant first files a claim for limited
(e.g., $250,000 cap on pain and suffering) no-fault compensation with the National
Vaccine Injury Compensation Program, which is “administered by a Director selected
by the Secretary” of Health and Human Services. Claims are adjudicated by the
United States Court of Federal Claims and are paid by the Vaccine Injury
Compensation Trust Fund, which is funded by a tax on vaccines.
A claimant dissatisfied with recovery under the Program may sue under state
tort law, but the statute imposes various limitations on such suits; for example,
manufacturers are not liable for failure to provide warnings directly to the injured
party, as warnings to the person administering the vaccine are made sufficient. 42
U.S.C. § 300aa-22(c).
Comprehensive Environmental Response, Compensation,
and Liability Act (Superfund)
This statute overrides state tort law in sections 112(e) and 309(a), 42 U.S.C. §§
9612(e) and 9658(a). Section 112(e) provides that, “[r]egardless of any State
statutory or common law to the contrary,” no person who asserts a claim against the
Fund shall be deemed to have waived any other claim arising from the same
transaction. Section 309(a) provides that, “[i]n the case of any action brought under
State law for personal injury, or property damages, which are caused or contributed
to by exposure to any hazardous substance . . . if the applicable limitations period for
such action (as specified in the State statute of limitations or under common law)
provides a commencement date which is earlier than the federally required
commencement date,” then the federally required commencement date shall govern.
General Aviation Revitalization Act, P.L. 103-298 (1994),
49 U.S.C. § 40101 note
P.L. 103-298 bars any products liability suit against a manufacturer involving
planes more than 18 years old with fewer than 20 seats that are not used in scheduled
service.
Cruise Ship Liability, P.L. 104-324, § 1129 (1996)
This section of the Coast Guard Authorization Act of 1996 (P.L. 104-324) added

46 U.S.C. App. § 183(g):


In a suit by any person in which the operator or owner of a vessel or employer
of a crewmember is claimed to have vicarious liability for medical malpractice



with regard to a crewmember occurring at a shoreside facility . . . such operator,
owner, or employer shall be entitled to rely upon any and all statutory limitations
of liability . . . in the State of the United States in which the shoreside medical
care was provided.
Section 1129 also added 46 U.S.C. App. § 183c(b) to allow:
contracts, agreements, or ticket conditions of carriage with passengers which
relieve a crewmember, manager, agent, master, owner, or operator of a vessel
from liability for infliction of emotional distress, mental suffering, or
psychological injury . . . .
Such liability, however, may not be limited if the emotional distress, mental
suffering, or psychological injury was the result of physical injury to the claimant or
the result of the claimant’s having been at actual risk of physical injury, if such injury
or risk was caused by the negligence or fault of a crewmember or the manager, agent,
master, owner, or operator. Such liability also may not be limited if it the emotional
distress, mental suffering, or psychological injury was intentionally inflicted, or
involved sexual harassment, sexual assault, or rape by a crewmember or the manager,
agent, master, owner, or operator.
Bill Emerson Good Samaritan Food Donation Act,
P.L. 104-210 (1996), 42 U.S.C. § 1791
P.L. 104-210 provides that a person (“an individual, corporation, partnership,
organization, association, or governmental entity”) or a gleaner (“a person who
harvests for free distribution to the needy”), except in cases of gross negligence or
intentional misconduct, “shall not be subject to civil or criminal liability arising from
the nature, age, packaging, or condition of apparently wholesome food or an
apparently fit grocery product that the person or gleaner donates in good faith to a
non-profit organization for ultimate distribution to needy individuals.” The nonprofit
organization that receives the donation shall also not be liable, except in cases of
gross negligence or intentional misconduct. The statute defines “gross negligence”
as “voluntary and conscious conduct (including a failure to act) by a person who, at
the time of the conduct, knew that the conduct was likely to be harmful to the health
or well-being of another person.” The Federal Food Donation Act of 2008, P.L.

110-247, provides that “all [federal] contracts above $25,000 for the provision,


service, or sale of food in the United States, or for the lease or rental of Federal
property to a private entity for events at which food is provided in the United States,
shall include a clause that” states, “An executive agency (including an executive
agency that enters into a contract with a contractor) and any contractor making
donations pursuant to this Act [P.L. 110-247] shall be exempt from civil and criminal
liability to the extent provided under the Bill Emerson Good Samaritan Food
Donation Act (42 U.S.C. 1791).” As federal agencies and contractors are already
covered by the Bill Emerson Good Samaritan Food Donation Act, the effect of the

2008 statute is to alert contractors to that fact.



Volunteer Protection Act of 1997, P.L. 105-19 (1997),
42 U.S.C. §§ 14501-14505
P.L. 105-19 provides immunity for ordinary negligence to volunteers for
nonprofit organizations or governmental entities acting within the scope of their
responsibilities, provided that, “if appropriate or required, the volunteer was properly
licensed, certified, or authorized by the appropriate authorities . . . .” The immunity
does not apply to “willful or criminal conduct, gross negligence, reckless misconduct,
or a conscious, flagrant indifference to the rights or safety of the individual harmed
by the volunteer.” This liability limitation does not apply to nonprofit organizations
or governmental entities; they may be held vicariously liable for the ordinary
negligence of their volunteers, even if volunteers are immune. Nonprofit
organizations and governmental entities, however, may continue to benefit from any
liability limitations provided by state law.
The Volunteer Protection Act of 1997 also eliminates joint and several liability
for noneconomic damages with respect to volunteers’ work for nonprofit
organizations and governmental entities, and allows punitive damages only where the
plaintiff establishes “by clear and convincing evidence that the harm was proximately
caused by an action of such volunteer which constitutes willful or criminal
misconduct, or a conscious, flagrant indifference to the rights or safety of the
individual harmed.”
The Volunteer Protection Act of 1997 preempts inconsistent state laws except
to the extent that such laws provide additional protection from liability to volunteers,
nonprofit organizations, or governmental entities. In addition, it allows states to
enact statutes “declaring the election of such State that this Act shall not apply to
such civil action in the State.” If they do so, then the statute would not apply in any
action if all parties to the action are citizens of the state.
Amtrak Reform and Accountability Act of 1997, P.L. 105-134,
§ 161 (1997), 49 U.S.C. § 28103
P.L. 105-134 limits damages in rail accidents. It permits punitive damages to
be awarded, to the extent permitted by applicable state law, “only if the plaintiff
establishes by clear and convincing evidence that the harm that is the subject of the
action was the result of conduct carried out by the defendant with a conscious,
flagrant indifference to the rights or safety of others.” It also provides: “The
aggregate allowable awards to all rail passengers, against all defendants, for all
claims, including claims for punitive damages, arising from a single accident or
incident, shall not exceed $200,000,000.”
Aviation Medical Assistance Act of 1998, P.L. 105-170 (1998),
49 U.S.C. § 44701 note
P.L. 105-170, § 5, provides that an air carrier shall not be liable for damages
“arising out of the performance of the air carrier in obtaining or attempting to obtain
the assistance of a passenger in an in-flight medical emergency, or out of the acts or
omissions of the passenger rendering the assistance, if the passenger is not an



employee or agent of the carrier and the carrier in good faith believes that the
passenger is a medically qualified individual.”
This statute also immunizes an individual in the above circumstances “unless
the individual, while rendering such assistance, is guilty of gross negligence or
willful misconduct.”
Biomaterials Access Assurance Act of 1998, P.L. 105-230
(1998), 21 U.S.C. §§ 1601-1606
P.L. 105-230 limits the products liability under state law of biomaterials
suppliers, which it defines as “an entity that directly or indirectly supplies a
component part or raw material for use in the manufacture of an implant.” A
biomaterials supplier may be held liable under state law only if it is the manufacturer
of the implant; if it is the seller of the implant in certain limited situations; or, if it is
neither the manufacturer nor seller of the implant, then only if it supplied raw
materials or component parts for use in the implant that either did not constitute the
product described in the contract or failed to meet specifications as provided in the
statute. The statute also contains special procedures for the dismissal of civil actions
against biomaterials suppliers.
Y2K Act, P.L. 106-37 (1999), 15 U.S.C. §§ 6601-6617
P.L. 106-37 limits contractual and tort liability under state law in suits, other
than those for personal injury or wrongful death, “in which the plaintiff’s alleged
harm or injury arises from or is related to an actual or potential Y2K failure . . . .”
Limitations on tort liability include (1) a cap on punitive damages, of the lesser of
three times the amount awarded for compensatory damages or $250,000, but the cap
applies only to defendants who are individuals whose net worth does not exceed
$500,000 or organizations with fewer than 50 full-time employees, (2) a “clear and
convincing evidence” standard for the recovery of punitive damages, (3) the
elimination of joint and several liability except in cases of specific intent to injure or
knowing commission of fraud, and except in some cases in which damages against
a defendant are uncollectible, and (4) except in the case of an “intentional tort arising
independent of a contract,” a prohibition on damages for economic loss, including
lost profits or sales.
Cardiac Arrest Survival Act of 2000, P.L. 106-505, § 404
(2000), 42 U.S.C. § 238q
P.L. 106-505 provides good Samaritan protections regarding automated external
defibrillators (AEDs). It provides that, with exceptions, “any person who uses or
attempts to use an automated external defibrillator device on a victim of a perceived
medical emergency is immune from civil liability; and in addition, any person who
acquired the device is immune from such liability,” except in specified
circumstances.
A defendant shall not have immunity under this statute if the defendant (1)
commits willful or criminal misconduct or gross negligence, (2) is a licensed or



certified health professional acting within the scope of employment or agency, (3) is
a hospital or clinic whose employee or agent used the AED while acting within the
scope of employment or agency, or (4) is an acquirer of the AED who leased it to a
health care entity, and the harm was caused by an employee or agent of the entity.
This statute supersedes state law only to the extent that a state has no statute or
regulations that provide persons within the class protected by this statute with
immunity for civil liability arising from the use of AEDs.
Air Transportation Safety and System Stabilization Act,

49 U.S.C. § 44303(b)


This statute provides that, “[f]or acts of terrorism committed on or to an air
carrier during the period beginning on September 22, 2001, and ending on December
31, 2008, the Secretary [of Transportation] may certify that the air carrier was a
victim of an act of terrorism and . . . shall not be responsible for losses suffered by
third parties (as referred to in section 205.5(b)(1) of title 14, Code of Federal
Regulations) that exceed $100,000,000, in the aggregate, for all claims by such
parties arising out of such act.” If the Secretary so certifies, making the air carrier not
liable for an amount that exceeds $100 million, then “the Government shall be
responsible for any liability above such amount. No punitive damages may be
awarded against an air carrier (or the Government taking responsibility for an air
carrier under this subsection) under a cause of action arising out of such act.”
This statute was enacted by P.L. 107-42, § 201(b), and sunset on March 21,

2002. It has been extended, however, most recently by P.L. 110-161, Div. K,


§ 114(b), 121 Stat. 2381 (2007), through 2008. The section in the Code of Federal
Regulations that § 201(b) mentions refers to “persons, including non-employee cargo
attendants, other than passengers”; these are apparently the “third parties” to whom
§ 201(b) refers.
September 11th Victim Compensation Fund of 2001,
49 U.S.C. § 40101 note
P.L. 107-42, Title IV, as amended, created a federal program to compensate
victims of the September 11, 2001 terrorist attacks. A victim or the victim’s estate
may seek no-fault compensation from the program or may bring a tort action against
an airline or any other party, but may not do both, except that a victim or the victim’s
estate may recover under the program and also sue “any person who is a knowing
participant in any conspiracy to hijack an aircraft or commit any terrorist act.” The
number of people who may recover by way of lawsuits may be limited, however, as
the statute limits the liability of air carriers (including air transportation security
companies and their affiliates), aircraft manufacturers, airport sponsors, or persons
with an interest in the World Trade Center on September 11, 2001, to the limits of
their liability insurance coverage. The statute gives the United States a right of
subrogation with respect to any claim it pays under the compensation program. This
means that the United States can recover amounts it pays under the compensation
program from any party whom the victim could sue (i.e., a terrorist) or would have



been able to sue had she or he not filed a claim under the program. The United
States’ subrogation rights, however, are limited to the caps mentioned above.
On March 7, 2002, the Department of Justice issued its final rule implementing
the September 11th Victim Compensation Fund.65 The final day to file a claim under
the fund was December 22, 2003.
Paul D. Coverdell Teacher Protection Act of 2001,
P.L. 107-110, §§ 2361-2368
P.L. 107-110 limits the liability of teachers, which it defines to include
instructors, principals, administrators, members of a school board, and other
educational professionals or nonprofessionals who work in a school and who are
called on to maintain discipline or ensure safety. The liability limitations, however,
apply only in states that receive funds under “this Act” (apparently P.L. 107-110) and
that do not enact a statute declaring that the act shall not apply in the state.
The act provides that no teacher shall be liable for ordinary negligence in
performing actions that are legal and “in furtherance of efforts to control discipline,
expel, or suspend a student or maintain order or control in the classroom or school.”
A teacher may be liable for “willful or criminal misconduct, gross negligence,
reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the
individual harmed by the teacher.” The act does not limit liability for harm caused
by a teacher operating a motor vehicle, vessel, aircraft, or other vehicle for which the
state requires an operator or owner to possess an operator’s license or to maintain
insurance, and it does not apply “to misconduct during background investigations,
or during other actions, involved in the hiring of a teacher.”
In cases in which a teacher may be held liable, punitive damages may not be
awarded “unless the claimant establishes by clear and convincing evidence that the
harm was proximately caused by . . . willful or criminal misconduct, or a conscious
flagrant indifference to the rights or safety of the individual harmed.” In addition,
joint and several liability shall not apply to noneconomic damages.
Multiparty, Multiforum Trial Jurisdiction Act of 2002,
P.L. 107-273, § 11020
P.L. 107-273, at 28 U.S.C. § 1369, provides that, under specified circumstances,
federal “district courts shall have original jurisdiction of any civil action involving
minimal diversity between adverse parties that arises from a single accident, where
at least 75 natural persons have died in the accident at a discrete location.”66


65 28 C.F.R. Part 104 [http://www.usdoj.gov/final_report.pdf]. For additional information
on this statute and the Department of Justice’s implementation of it, see CRS Report
RL31179, The September 11th Victim Compensation Fund of 2001, by Henry Cohen.
66 For additional information, see CRS Report RS20861, Multiparty, Multiforum Trial
Jurisdiction Act of 2002, P.L. 107-273, by Paul Starett Wallace Jr. and Mark Gurevitz.

Homeland Security Act of 2002, P.L. 107-296,
§§ 304, 863, 890, 1201, 1402, and 1714-1717
P.L. 107-296 includes six different tort liability provisions (some mentioned as
amendments to statutes listed above), which limit the liability of, respectively,
smallpox vaccine manufacturers and administrators, sellers of anti-terrorism
technology (the SAFETY Act), air transportation security companies and their
affiliates, air carriers, Federal flight deck officers, and manufacturers and
administrators of components and ingredients of various vaccines.67 This last
liability limitation — an amendment to the National Childhood Vaccine Injury Act
of 1986, which appeared in §§ 1714-1717 of the Homeland Security Act of 2002 —
was repealed by Public Law 108-7, Division L, § 102.
SAFETY Act, P.L. 107-296, § 863
The Support Anti-terrorism by Fostering Effective Technologies Act of 2002,
or the SAFETY Act, (P.L. 107-296), is one of the tort liability provisions in the
Homeland Security of 2002. Section 863 created a federal cause of action against
sellers of anti-terrorism technologies for claims arising out of “an act of terrorism
when qualified anti-terrorism technologies have been deployed in defense against or
recovery from such act. . . .” This federal cause of action preempts state tort law and
provides for more limited liability than does state tort law; for example, it prohibits
punitive damages, joint and several liability for noneconomic damages, and use of
the collateral source rule. The federal cause of action applies only to technology68
approved by the Secretary of Homeland Security.
PROTECT Act, P.L. 108-21, § 305
Section 305 of the Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003, or the PROTECT Act (P.L. 108-21),
provides that neither the National Center for Missing and Exploited Children, nor any
of its officers, employees, or agents, shall “be liable for damages in any civil action
for defamation, libel, slander, or harm to reputation arising out of any action or
communication,” unless it or he or she “acted with actual malice, or provided
information or took action for a purpose unrelated to an activity mandated by Federal
law.”
Class Action Fairness Act of 2005, P.L. 109-2
P.L. 109-2, which is not applicable only to tort actions, amended 28 U.S.C. §
1332 to provide that the federal district courts shall have exclusive jurisdiction over
any class action in which the matter in controversy exceeds $5 million and any
member of a class of plaintiffs is a citizen of a state different from any defendant.


67 All six provisions are examined in CRS Report RL31649, Homeland Security Act of 2002:
Tort Liability Provisions, by Henry Cohen.
68 Department of Homeland Security regulations implementing the SAFETY Act appear at

6 C.F.R. Part 25.



Among the statute’s other provisions is a new 28 U.S.C. § 1453 to govern removal
of class actions from state court to federal district court.69
Protection of Lawful Commerce in Arms Act,
P.L. 109-92 (2005)
P.L. 109-92 prohibits “a civil action or proceeding or an administrative
proceeding,” except in six circumstances, against a manufacturer or seller of a
firearm or ammunition, or a trade association, for damages “resulting from the
criminal or unlawful misuse” of a firearm or ammunition. The exceptions cause the
statute not to bar suits if, among other circumstances, the defendant violated a statute
or engaged in negligent entrustment or an act of negligence per se. One of the
exceptions ensures that the Bureau of Alcohol, Tobacco, Firearms and Explosives
may still bring proceedings against gun manufacturers and sellers.
Section 5 of P.L. 109-92 is a separate law called the Child Safety Lock Act of
2005. With exceptions, it requires a “secure gun storage or safety device” (as defined
in 18 U.S.C. § 921(a)(34)) on handguns, and provides that a person who has lawful
possession and control of a handgun, and who uses such a device, is entitled to the
same immunity as granted to gun manufacturers, sellers, and trade associations by
P.L. 109-92.70
Public Readiness and Emergency Preparedness Act,
P.L. 109-148, Division C (2005)
P.L. 109-148 limits liability with respect to pandemic flu and other public health
countermeasures. Upon a declaration by the Secretary of Health and Human Services
of a public health emergency or the credible risk of such emergency, the statute
would, with respect to a “covered countermeasure,” eliminate liability, with one
exception, for the United States, and for manufacturers, distributors, program
planners, persons who prescribe, administer or dispense the countermeasure, and
employees of any of the above. The exception would be that a defendant who
engaged in willful misconduct would be subject to liability under a new federal cause
of action, though not under state tort law. However, victims could, in lieu of suing,
accept payment under a new “Covered Countermeasure Process Fund,” if Congress71


appropriates money for this fund.
69 For additional information, see CRS Report RL32761, Class Actions and Legislative
Proposals in the 109th Congress: Class Action Fairness Act of 2005, by Paul Starett
Wallace Jr.
70 For additional information, see CRS Report RS22074, Limiting Tort Liability of Gun
Manufacturers and Gun Sellers: Legal Analysis of P.L. 109-92 (2005), by Henry Cohen.
71 For additional information, see CRS Report RS22327, Pandemic Flu and Medical
Biodefense Countermeasure Liability Legislation: P.L. 109-148, Division C (2005), by
Henry Cohen and Vanessa K. Burrows.

The Adam Walsh Child Protection and Safety Act of 2006,
P.L. 109-248
The Protection of Children From Sexual Predators Act of 1998, P.L. 105-314,
§ 604, added § 227 to the Victims of Child Abuse Act of 1990, 42 U.S.C. §§ 13001
et seq. Section 227(b)(1), 42 U.S.C. § 13032(b)(1), provides that
Whoever, while engaged in providing an electronic communication service or a
remote computing service to the public, through a facility or means of interstate
or foreign commerce, obtains knowledge of facts or circumstances from which
a violation of [a specified federal child pornography statute], is apparent, shall,
as soon as reasonably possible, make a report of such facts or circumstances to
the Cyber Tip Line at the National Center for Missing and Exploited Children,
which shall forward that report to a law enforcement agency or agencies
designated by the Attorney General.
The Adam Walsh Child Protection and Safety Act of 2006, P.L. 109-248, § 130,
added 42 U.S.C. § 13032(g), which grants the National Center for Missing and
Exploited Children, as well as its directors, officers, employees, or agents, immunity
from civil or criminal liability arising from the performance of Cyber Tip Line
responsibilities, except when the Center or any of the above individuals engages in
intentional misconduct or reckless disregard to a substantial risk of causing injury
without legal justification.
Implementing Recommendations of the 9/11 Commission Act
of 2007, 6 U.S.C. § 1104(c)
P.L. 110-53, § 1206 (2007), provides immunity from liability to people who, “in
good faith and based on objectively reasonable suspicion,” report to an authorized
official suspicious activity regarding “a passenger transportation system or vehicle
or its passengers.” The statute also provides, “Any authorized official who observes,
or receives a report of, covered activity and takes reasonable action in good faith to
respond to such activity shall have qualified immunity from civil liability for such
action, consistent with applicable law in the relevant jurisdiction. An authorized
official . . . not entitled to assert the defense of qualified immunity shall nevertheless
be immune from civil liability under Federal, State, and local law if such authorized
official takes reasonable action, in good faith, to respond to the reported activity.”
FISA Amendments Act of 2008
Title I of P.L. 110-261, the Foreign Intelligence Surveillance Act Amendments
Act of 2008, contains two prospective immunity provisions for electronic
communication service providers. Title I defines electronic communication service
providers as telecommunications carriers, providers of electronic communication
services and remote computing services, and “any other communication service
provider who has access to wire or electronic communications either as such
communications are transmitted or as such communications are stored,” as well as



the officers, employees, and agents of such entities.72 First, the statute provides that
“[n]o cause of action shall lie in any court against any electronic communication
service provider for providing any information, facilities, or assistance in accordance
with a directive issued”73 by the Attorney General and the Director of National
Intelligence, after a Foreign Intelligence Surveillance Court (FISC) order or a
determination of exigent circumstances, in connection with the targeting of non-
United States persons “reasonably believed to be located outside of the United States
to acquire foreign intelligence information.”74 Second, the statute further provides
that “[n]o cause of action shall lie in any court against any electronic communication
service provider for providing any information, facilities, or assistance in accordance
with” a FISC order or request for emergency assistance in connection with the
targeting of a United States person reasonably believed to be located outside the
United States to gather foreign intelligence information.75
Title II of P.L. 110-261 provides for the dismissal of certain pending civil
actions against any “person,” which the act defines to include electronic
communication service providers as well as “a landlord, custodian, or other person
who may be authorized or required to furnish assistance pursuant to” certain orders
of the FISC, certifications, or directives.76 Such actions must be dismissed if the
United States district court finds substantial evidence to support the Attorney
General’s certification that any assistance provided by that person fit within one of
five categories listed in § 802(a) of the FISA Act of 1978, as amended by P.L. 110-

261.77 State court civil actions would be removable to federal court.78


72 P.L. 110-261, § 101 (creating § 701(b)(4) of the Foreign Intelligence Surveillance Act of

1978, as amended (FISA Act)).


73 P.L. 110-261, § 101 (creating § 702(h)(3) of the FISA Act).
74 P.L. 110-261, § 101 (creating § 702(a) of the FISA Act).
75 P.L. 110-261, § 101 (amending § 703(e) of the FISA Act).
76 P.L. 110-261, § 201 (creating §§ 801, 802 of the FISA Act).
77 P.L. 110-261, § 201 (creating § 802(a), (b)(1) of the FISA Act).
78 P.L. 110-261, § 201 (creating § 802(g) of the FISA Act). For additional information, see
CRS Report RL34279, The Foreign Intelligence Surveillance Act: An Overview of Selected
Issues, by Elizabeth B. Bazan, and CRS Report RL34566, The Foreign Intelligence
Surveillance Act: A Sketch of Selected Issues, by Elizabeth B. Bazan.