Federal Tort Reform Legislation: Constitutionality and Summaries of Selected Statutes

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Federal Tort Reform Legislation:

Constitutionality and Summaries

of Selected Statutes

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January 28, 2010

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CRS Report for Congress

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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 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.

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Federal Tort Reform Legislation: Constitutionality and Summaries of Selected Statutes

Contents

Introduction ................................................................................................................................1

Part I. Tort Reform Generally ......................................................................................................1

A. Commerce Power .............................................................................................................1

B. Due Process......................................................................................................................3

C. Federalism........................................................................................................................4

Part II. Alternative Dispute Resolution ........................................................................................6

A. Seventh Amendment.........................................................................................................7

B. Article III..........................................................................................................................8

C. Article III / Seventh Amendment Equivalence...................................................................9

D. Applying Article III and the Seventh Amendment .............................................................9

E. Constitutionality of Establishing Federal Non-Article III Forums: Conclusion................. 13

F. Constitutionality of Prohibiting States from Using Jury Trials, Without

Establishment of a Federal Non-Article III Forum............................................................ 14

Appendixes

Appendix. Selected Federal Tort Reform Statutes ...................................................................... 16

Contacts

Author Contact Information ...................................................................................................... 26

Acknowledgments .................................................................................................................... 26

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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, that is, liable even in the absence of negligence. Although tort law is almost

exclusively state law rather than federal law, Congress, as noted in the Appendix to this report,

has enacted a number of tort reform statutes.

Part I of this report discusses that the 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,” this usually refers 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 options, some of which could have

constitutional problems. This report also includes an Appendix describing selected federal tort

reform statutes.

Part I. Tort Reform Generally

This section examines the constitutionality of Congress’s authority to enact tort reform,

specifically its authority to enact legislation under the Commerce Clause. Other constitutional

concerns that the courts have previously addressed with respect to tort reform, such as Due

Process and Federalism, are also examined in this section.

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.

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’”).

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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 protect the instrumentalities of interstate commerce,

or things in interstate commerce, even though the threat may come only from intrastate

activities. Finally, Congress’ 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

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.

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 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.

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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.

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’s 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

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.

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Federal Tort Reform Legislation: Constitutionality and Summaries of Selected Statutes

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 constitutionality 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 Congress’s 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

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).

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.”

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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 of regulating that activity according to federal standards or having state law preempted 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

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.”

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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 individuals, 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 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 generally free to prescribe any procedure for its enforcement, with or without

a jury trial.8 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 jury trials in tort cases

brought in state courts,10 and the Seventh Amendment to the United States Constitution generally

provides for jury trials of cases arising under state law that are brought in federal court.11 The

question has arisen, therefore, as to the extent to which the Constitution permits Congress to

“[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).

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.

“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).

Simler v. Connor, 372 U.S. 221 (1963).

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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 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

Because the Seventh Amendment applies to the federal courts, 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

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

“Common law” refers to law created by state courts, on a case-by-case basis.

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.

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).

Simler v. Connor, supra note 11.

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.)

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).

Mountain Timber Co. v. Washington, 243 U.S. 219, 235 (1917).

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court but prohibiting them from being heard by juries. If Congress is precluded from permitting

common law tort suits to be heard by a federal court without a jury, then it also is precluded from

permitting common law tort suits 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’s 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

the historically recognized judicial power.23

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

Whether Congress may require the use of non-federally established arbitration panels is considered in “F.

Constitutionality of Prohibiting States from Using Jury Trials, Without Establishment of a Federal Non-Article III

Forum,” below.

Palmore v. United States, 411 U.S. 389, 408 (1973).

458 U.S. 50, 70 (1982).

Id. at 64-70.

Id. at 69-70 (emphasis in original; citations omitted).

Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 586 (1985).

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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 III court.25

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

power to place adjudicative authority in non-Article III tribunals is circumscribed.26

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 a nonjury factfinder.27

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 nonArticle 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,28 this

would not raise an Article III/ Seventh Amendment issue. 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. Yet, such an action by Congress raises a

different constitutional issue of whether Congress may alter procedures that state courts use to

492 U.S. 33, 54-55 (1989) (citation omitted).

Id. at 52 (emphasis in original; citations omitted).

Id. at 53-54.

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.

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adjudicate state causes of action. This is discussed below in “F. Constitutionality of Prohibiting

States from Using Jury Trials, Without Establishment of a Federal Non-Article III Forum.”

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 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

473 U.S. 568, 584 (1985).

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.

492 U.S. at 52, 54.

473 U.S. at 586.

Id. at 587.

Id. at 572.

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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 providing an Article III adjudication.38

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 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 the constitutionally assigned role of the federal judiciary.42

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 Congress to depart from the requirements of Article III.43

Id. at 573.

Id. at 573-574.

Id. at 584.

Id. at 589.

492 U.S. at 54.

473 U.S. at 591.

Id. at 592.

478 U.S. 833, 851 (1986) (citations omitted).

Id.

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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 portion of the Bankruptcy Act found unconstitutional in Northern Pipeline.44

Specifically, CFTC orders are reviewed under the “weight of the evidence” standard, “rather than

the more deferential standard found lacking in Northern 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

Chapter 11 reorganization proceedings.49

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

Id. at 852.

Id. at 853.

458 U.S. at 71.

Id. at 77.

Id. at 85.

492 U.S. at 55-56.

Id. at 60-61.

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“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 ‘an administrative forum with which the jury would

be incompatible.’”51

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 will have on the constitutionally assigned role of the

federal judiciary.”54 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

Id. at 61 (citations omitted).

Id. at 63.

473 U.S. at 589.

478 U.S. at 851.

Id. at 857.

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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 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 be

declared by its Legislature in a statute or by its highest court in a decision.”56

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 wholly irrelevant.”57 Although the Seventh

Amendment, rather than the substantive/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 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

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.’”

Wright & Miller, FEDERAL PRACTICE AND PROCEDURE : CIVIL § 2303.

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

(continued...)

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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’s 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.

(...continued)

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.

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.

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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

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

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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,

P.L. 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’ 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.

(...continued)

program for individuals exposed to radiation between specified dates in 1951 and 1962.

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).

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.

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 (name redacted).

For additional information on these first two categories, see CRS Report RS20984, Public Health Service Act

Provisions Providing Immunity from Medical Malpractice Liability, by (name redacted).

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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

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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, 42 U.S.C. § 1792, 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.”

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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

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Federal Tort Reform Legislation: Constitutionality and Summaries of Selected Statutes

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.

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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

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 (name redacted).

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... 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

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 P.L. 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 technology approved by the

Secretary of Homeland Security. 68

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 additional information, see CRS Report RS20861, Multiparty, Multiforum Trial Jurisdiction Act of 2002, P.L.

107-273, by (name redacted) and (name redacted)

All six provisions are examined in CRS Report RL31649, Homeland Security Act of 2002: Tort Liability Provisions,

by (name redacted).

Department of Homeland Security regulations implementing the SAFETY Act appear at 6 C.F.R. Part 25.

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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. 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

For additional information, see CRS Report RL32761, Class Actions and Legislative Proposals in the 109th

Congress: Class Action Fairness Act of 2005, by (name redacted)

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 (name redacted).

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under a new “Covered Countermeasure Process Fund,” if Congress appropriates money for this

fund.71

The Adam Walsh Child Protection and Safety Act of 2006, P.L. 109248

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

For additional information, see CRS Report RS22327, Pandemic Flu and Medical Biodefense Countermeasure

Liability Limitation, by (name redacted) and (name redacted).

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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

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Acknowledgments

(name redacted), Legislative Attorney, was the initial author of this report.

(name redacted), Legislative Attorney, contributed to this report.

P.L. 110-261, § 101 (creating § 701(b)(4) of the Foreign Intelligence Surveillance Act of 1978, as amended (FISA

Act)).

P.L. 110-261, § 101 (creating § 702(h)(3) of the FISA Act).

P.L. 110-261, § 101 (creating § 702(a) of the FISA Act).

P.L. 110-261, § 101 (amending § 703(e) of the FISA Act).

P.L. 110-261, § 201 (creating §§ 801, 802 of the FISA Act).

P.L. 110-261, § 201 (creating § 802(a), (b)(1) of the FISA Act).

P.L. 110-261, § 201 (creating § 802(g) of the FISA Act). For additional information, see CRS Report RL34279, The

Foreign Intelligence Surveillance Act (FISA): An Overview of Selected Issues, and CRS Report RL34566, The Foreign

Intelligence Surveillance Act (FISA): A Sketch of Selected Issues, both by (name redacted).

Congressional Research Service

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