	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. 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. Part I. A. , those activities that substantially affect interstate commerce. 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. There is no right to a jury trial, nor to judicial review. , common law] in nature. But to what extent may Congress require that tort claims be decided by an Article I tribunal? 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. 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.
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.