Author:Silas Wasserstrom, Anne Woolhandler

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The Constitution intersects with tort law, broadly conceived, in various ways. Most basically, the DUE PROCESS clauses of the Fifth Amendment and FOURTEENTH AMENDMENT require that in any legal proceeding enforced by public authority in which a property interest is at stake, as it almost invariably is in a tort suit, the parties must be accorded PROCEDURAL DUE PROCESS and the EQUAL PROTECTION OF THE LAWS. These requirements, however, are not cumbersome. As the Supreme Court said in Snyder v. Massachusetts (1934), a state remains "free to regulate procedure of [its] courts in accordance with [its] own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our peoples as to be ranked as fundamental." Moreover, due process of law does not always require a proceeding in court. The states are free, for example, to replace the traditional COMMON LAW approach to employee injuries with an administrative workers' compensation system, as all states have now done.

Beyond these rudimentary requirements of procedural due process, which apply to all state-enforced proceedings, the interactions between the Constitution and tort law become considerably more complex. To begin with, the Constitution sometimes functions as a sword, that is, as a source of rights that may be protected by tortlike civil action and damage remedies, and sometimes functions as a shield, that is, as an obstacle to civil actions and remedies that would otherwise be available under state or federal law. Moreover, the Constitution interacts with tort law as a sword and as a shield both directly and obliquely. We begin with the Constitution's more indirect interactions.

By virtue of the SUPREMACY CLAUSE (Article VI, clause 2), the Constitution is the ultimate source of congressional authority. Thus, the Constitution is indirectly the source of all tortlike civil causes of action created by federal statutes. Where a statute explicitly creates a private cause of action, this area of law raises few problems. However, many federal regulatory and criminal statutes specify standards of conduct without expressly authorizing suits for money DAMAGES. Not surprisingly, individuals injured by violations of these laws often ask the federal courts to create private causes of action with damages as a remedy. All agree that the issue of whether the federal courts should infer such a cause of action is a matter of statutory construction and that what must ultimately be determined is whether Congress intended to create the private remedy asserted. Yet, the question of what constitutes sufficient evidence of congressional intent and how restrictive or liberal the Court should be in finding implied private causes of action is highly controversial and has sharply divided the Court. It is clear, however, that during the twenty-five years since its 1964 decision in J. I. Case Co. v. Borak, where the Court seemed willing to create a private right of action wherever doing so would help effectuate the purpose of the statute, the Court has generally grown increasingly hostile toward implied causes of action. The prevailing view on the Court now seems to be that first expressed by Justice LEWIS F. POWELL in his dissent in Cannon v. University of Chicago (1979): "absent the most compelling evidence of affirmative congressional intent, a federal court should not infer a private cause of action."

The Constitution is also the ultimate source of authority for the FEDERAL TORT CLAIMS ACT, which provides that the "United States shall be liable ? to tort claims in the same manner and to the same extent as a private individual under like circumstances" (28 U.S.C. 2674). The act does not create new causes of action. Rather, it constitutes a waiver of SOVEREIGN IMMUNITY by the United States for negligent acts by its employees that would constitute torts in states where the conduct occurs. The act has many important express exceptions (such as an exception for intentional acts and for "discretionary functions") and the Supreme Court has inferred additional exceptions (such as the bar to suits by members of the ARMED FORCES for injuries they incur while in the military). Nevertheless, the act, which

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was not passed until 1946, remains the only basis for recovery of damages from the United States for the torts of its employees.

Not only is the Constitution the ultimate source of authority for federal statutes that create or permit tortlike causes of action, but it is also the ultimate source of authority for federal statutes that preclude state tort remedies that would otherwise be available. In this case, too, the issue is one of statutory interpretation (did Congress intend to displace state laws dealing with the same subject matter as the federal statute?), and here, also, the issue is easily resolved where Congress made it clear that the federal statute is intended to preempt the relevant state law. For example, in Duke Power Co. v. Carolina Environmental Study Group, the Court upheld the Price-Anderson Act, which expressly limited aggregate liability for a single nuclear power plant accident to $560 million, thereby limiting the tort remedies that might otherwise be available to plaintiffs in state courts. The Court rejected the claim that the statute resulted in an unconstitutional deprivation of the property rights of potential accident victims.

More difficult issues arise where Congress's intent with respect to state law is unclear. For example, the Federal Cigarette Label and Advertising Act requires that cigarette packages be marked with certain specified warning labels. Although the act forbids states to require additional warnings of any kind, the act does not make it clear whether, or to what extent, state courts are precluded from allowing tort actions...

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