Product Liability Law in the Federal Arena

• Jurisdiction: United States,Federal
• Citation: Vol. 19 No. 03
• Publication year: 1996

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 19, No. 3SPRING 1996

FEDERAL PRODUCT LIABILITY LITIGATION REFORM: RECENT DEVELOPMENTS AND STATISTICS

Product Liability Law in the Federal Arena

Sherman Joyce(fn*)

Introduction

The law of product liability has been created by state judges(fn1) and legislatures.(fn2) Although not widely noticed, this tradition changed when Congress enacted the General Aviation Revitalization Act of 1994.(fn3) That legislation established an eighteen-year statute of repose for claims brought by non-commercial passengers injured or killed in accidents involving light aircraft.(fn4) Until that time, product liability law had been exclusively a function of state law. Nevertheless, product liability reform legislation has been the subject of extensive examination and scrutiny by Members of the United States Congress for one and a half decades.

The first widely noticed effort by the United States Senate to enact federal product liability legislation occurred in 1981 when former Senator Robert Kasten of Wisconsin introduced a bill in the 97th Congress.(fn5) Since that time, the Senate Committee on Commerce, Science, and Transportation has reported legislation during each successive Congress with the exception of the 100th in 1987-88. Prior to this, the 104th Congress, no legislation has been considered on the merits by the full Senate. Past consideration has been limited to procedural votes to halt filibusters, and, until 1995, no effort has succeeded. During this Congress, however, under the leadership of Senators John D. Rockefeller, IV, of West Virginia, Slade Gorton of Washington, and Joseph Lieberman and Christopher Dodd of Connecticut, the Senate moved very quickly to pass S. 565, the Product Liability Fairness Act of 1995.(fn6) On May 10, 1995, the bill passed the full Senate by a vote of 61 to 37.(fn7)

With the exception of the 100th Congress, the House of Representatives has given product liability reform legislation even less attention.(fn8) The Chairmen of the House Judiciary Committee from 1980 until 1994, Peter Rodino and Jack Brooks, refused to hold even one day of hearings on the subject. The 1995 change in leadership, however, brought a dramatic change. The Republican leadership, including Speaker Newt Gingrich of Georgia, Majority Leader Richard Armey of Texas, Judiciary Committee Chairman Henry Hyde of Illinois, Commerce Committee Chairman Thomas Bliley of Virginia, Representative Christopher Cox of California, and many others, led the successful effort to pass H.R. 956, the Common Sense Legal Standards Reform Act of 1995, by a vote of 265 to 161.(fn9) Even more extraordinary than the fact that the House successfully passed legislation for the first time is the speed at which this was done: the vote on final passage occurred on March 10, 1995, only seventy-two days after its January 4th introduction.

On March 14, 1996, a House-Senate Conference Committee filed the Conference Report on H.R. 956, a compromise measure that resolved the differences between the two versions of the legislation.(fn10) The Senate passed the Conference Report on March 21, 1996, by a vote of 59 to 40.(fn11) On March 29th, the House passed the measure by a vote of 259 to 158.(fn12)

Prior to congressional consideration of the Conference Report, the Clinton Administration indicated that the President would veto the bill in its current form.(fn13) In a March 16th letter from the President to Speaker Gingrich and Majority Leader Dole, the President stated that H.R. 956 "represents an unwarranted intrusion on state authority. . . . Tort law is traditionally the prerogative of the states, rather than Congress. In this bill, Congress has intruded on state power. . . ."(fn14)

Those who advocated federal product liability reform were pleased that they had established an extensive record on which this legislation could be based.(fn15) Nevertheless, opponents of the legislation, including the Association of Trial Lawyers of America and some professional consumer organizations, such as Public Citizen, Consumers Union, and the Consumer Federation of America, continued to suggest that Congress should not-indeed some have stated cannot-enact legislation in this area, contending that Congress lacks power under the Constitution to do so.

This Article will analyze the constitutional underpinnings for federal product liability reform legislation and explain why Congress has the authority under both the Commerce Clause and the Due Process Clause to pass federal product liability legislation. It also will explain briefly why federal legislators, who otherwise favor returning power to the individual states, were justified in supporting federal legislation.

I. The Commerce Clause

A. A Brief History

The Commerce Clause(fn16) has been the basis for enactment of a sweeping array of federal legislation. As Chief Justice Marshall stated, the Commerce power "is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution."(fn17) Despite the seemingly unlimited authority that this clause confers on the Congress, an analysis of key cases demonstrates that the history of this provision is somewhat uneven.

In the early part of this century, the Supreme Court granted Congress a great deal of latitude to legislate under the Commerce Clause. For example, in Houston, E. and W. Texas Railway Co. v. United States (Shreveport Rate Cases),(fn18) the Court held that when aspects of intrastate activities and interstate activities were so closely related as to require regulation of both in order to fully regulate interstate commerce, the Commerce Clause permitted such a regulatory process.(fn19)

Despite this expansive interpretation of Congress' power, just over two decades later, the Court appeared to reverse course. In A.L.A. Schecter Poultry Corp. v. United States,(fn20) the Court ruled that regulation of the wages and hours worked by employees in a business engaged in interstate activities was not permissible because the matters subject to regulation were only indirectly related to interstate commerce.(fn21) By limiting the reach of Congress' authority to only those activities that directly affected interstate commerce, the Court sought to avoid the obvious concern that "there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government."(fn22)

After constricting Congress' power in Schecter Poultry, the Supreme Court reversed course again and embarked on the path to the current expansive interpretation of the Commerce...