American Bar Association
General Practice, Solo, and Small Firm Division

The Compleat Lawyer

Summer 1997 copyright American Bar Association. All rights reserved.

Legislative Update

E. E. Anderson

Product Liability Legislation Again Introduced

As mentioned in the Summer 1996 issue (pp. 51-52), the 104th Congress passed a product liability bill (H.R. 956) by a vote of 59-40 in the Senate and a 259-158 vote in the House. After several promises by President Clinton that he would sign such legislation, he vetoed the bill on May 2, 1996.

The Summer 1996 issue outlined the principal provisions of H.R. 956. Following the veto, former Senate Majority Leader Dole (R-KS) accused Clinton of succumbing to the "most powerful special interest lobby in America: the trial lawyers."

Senator John Ashcroft (R-MO) introduced identical legislation, S. 5, on January 21, 1997, but said it is just a "place marker for discussions and a fair resolution of issues." Hearings were held by the Senate Commerce, Science and Transportation Committee on March 4, 1997, and a mark-up session is expected to take place after the Congress returns from its spring recess in early April. Product liability legislation is one of the top ten agenda items for the Senate in the 105th, and Senate Majority Leader Trent Lott (R-MS) has said that Congress owes the people of America to try once again to pass such legislation.

Senator John D. Rockefeller IV (D-WV), a strong supporter of H.R. 956, has indicated that S. 5 could be enacted if Congress can come reasonably close to meeting Clinton's objections "and yet not clobbering the bill." He also warned that unless the president's objections are addressed, he will have a very difficult time keeping the small number of Democrats supporting the bill in line.

Those opposed to the bill, primarily trial lawyers and consumer groups, say that such legislation would prevent consumers from obtaining adequate remedies for injuries caused by faulty products and that manufacturers would have less incentive to make their products safe. Also, others contend that such legislation intrudes upon state authority and that states are already adequately handling the matter.

One area suggested for possible amendment is abolishing joint liability for noneconomic damages in product cases. Joint liability holds that any of the parties (designer, manufacturer, and distributor of a faulty product) that contributed to an injury is potentially liable for all damages in the case. President Clinton objected to the joint liability provisions as well as the cap on punitive damages.

What is the ABA's policy with respect to S. 5? Among other objections, the ABA has long opposed enactment of broad federal product liability legislation. It supports the continued right of states and territories to regulate product liability law rather than have Congress mandate broad federal legislation.

The ABA views S. 5 as an unwise and unnecessary intrusion of massive proportions on the longstanding authority of states to promulgate tort law. It also opposes S. 5 on the grounds that such legislation would deprive consumers of the sound guidance of the well-developed product liability laws of their individual states.

While Senator Rockefeller indicates that the Democratic supporters of S. 5 will dissipate if the objections of President Clinton are not addressed, on the Republican side, Senator Spencer Abraham (R-MI) has said that if the president fails to make concessions, he and other Republicans will not support the bill. For now, we must await the mark-up and see what concessions have been made by both Congress and the White House before we will have an indication as to whether the bill will be passed, and if passed, whether the president will sign or veto it.

The ABA and the Judicial Confirmation Process

The ABA's role regarding the qualifications of individuals under consideration for appointment to the Supreme Court as well as all Article III lower federal courts began in 1947 when the chair of the Senate Judiciary Committee, Senator Alexander Wiley (R-WI), invited the ABA's Special Committee on the Judiciary (now the ABA Standing Committee on the Federal Judiciary) to testify or make recommendations respecting judicial nominations before the Senate.

In 1952, the Attorney General asked for the ABA committee's views on a prospective nominee before deciding whether to submit that individual to the Senate for confirmation. In the early days, the ABA committee focused on the professional competence and ethical integrity of the nominees most likely to be nominated by the president and would rate a nominee as "Qualified" or "Not Qualified." In 1958, the committee began reviewing the qualifications of all persons being seriously considered for an open seat and ratings were expanded to include "Well Qualified" and "Exceptionally Well Qualified."

In the 1980s, the committee sought comments on prospective nominees from various interest groups on the liberal side of the political spectrum. However, after turning down a request from a conservative foundation for the names of prospective nominees being reviewed, the Standing Committee discontinued the formal practice of consulting with outside groups. President Reagan discontinued the practice of seeking pre-nomination evaluations of prospective nominees for Supreme Court vacancies. In addition, neither President Reagan nor President Bush would send forth a nomination for a lower federal court if the Standing Committee warned that the nominee would be deemed "Not Qualified."

A firestorm of controversy occurred in 1987 when a substantial minority of the Standing Committee deemed Judge Robert Bork to be "Not Qualified." In a statement of the chair of the Standing Committee before the Senate Judiciary Committee, he indicated that Judge Bork was rated "Not Qualified" by a minority of the Standing Committee, "not because of doubts as to his professional competence and integrity, but because of its concerns as to his judicial temperament, e.g., his compassion, open-mindedness, his sensitivity to the rights of women and minority persons and comparatively extreme views respecting Constitutional principles or their application, particularly within the ambit of the Fourteenth Amendment."

During the Bush administration, the ABA was asked to use only "Qualified" and "Not Qualified" as ratings, and the ABA agreed to delete the "Extremely Well Qualified" rating. Also, Bush refused to send the names of prospective nominees to the Standing Committee until the Standing Committee deleted from its standards of reference the consideration of political or ideological factors.

The adoption by the House of Delegates at this year's ABA Midyear Meeting of a sensitive resolution prompted calls for the termination of the ABA's special role in federal bar nominations. The resolution called for a moratorium on capital punishment unless and until additional procedures were adopted respecting the representation and sentencing of capital offenders.

In a February 24, 1997, letter from Senator Orrin G. Hatch (R-UT), chair of the Senate Judiciary Committee, to the members of the committee, he said, "When the Chairman of the Judiciary Committee decided in 1947 to invite the ABA to advise the committee on the qualifications of judicial nominees, the ABA could be said to have been a neutral, objective representative of the legal profession as a whole. Since the 1980s, however, the ABA as a whole has taken stands on a series of political issues on which the bar has little, if any, special expertise or experience. For example, the ABA has taken positions on abortion, affirmative action, flag desecration, religious liberty, habeas corpus reform, funding for the arts, welfare reform, deportation of criminal aliens, and medical liability reform, just to name a few among many. One cannot seriously dispute that the ABA has become a political interest group."

Senator Hatch went on to say, "Since it was the Chairman of the Judiciary Committee who first invited the ABA to advise the Committee regarding the qualifications of judicial nominees, I believe it is now my responsibility to withdraw this invitation. Individual Senators are, of course, free to give the ABA's ratings whatever weight they choose."

For a complete report on this matter, including detailed responses from ABA President N. Lee Cooper, former ABA President Roberta Cooper Ramo, and Senator Joseph R. Biden (D-DE), see the ABA Watch, special edition, March 1997, published by the Federalist Society for Law and Public Policy Studies.

Many of the provisions of the Anti-Terrorism and Effective Death Penalty Act (P.L. 104-132) signed on April 24, 1996, by President Clinton, were strongly opposed by the ABA. One of its provisions limits death row appeals. It set a deadline of one year for filing federal appeals, or six months for inmates who were provided lawyers for state appeals. In most cases, state prisoners were limited to one such appeal. A key provision bars a federal court from awarding relief with respect to a federal constitutional claim if the claim had been rejected previously in a state court, unless the state court decision was an "unreasonable" application of previously decided federal law. This reversed prior precedent that gave federal courts the authority to examine federal constitutional claims independent of state court decisions.

Habeas Corpus Petition Attack

Before enactment in the Senate, Senator Daniel Patrick Moynihan (D-NY) attempted to recommit the bill to conferees with instructions to delete the deference language that required federal judges to defer to state courts on federal constitutional issues. His attempt was defeated by a 64-35 vote.

Just five days after the new law was signed, Ellis W. Felker, a Georgia inmate convicted of murder, filed a habeas petition. This was his second petition, as a previous petition had been denied by the courts. Under the new law, a second petition may be considered by a federal district court only after a prisoner has received permission from a Federal Appeals Panel. The panel rejected his second petition and the Supreme Court, acting with uncharacteristic speed, decided to review the case.

On June 3, 1996, the Supreme Court heard arguments on the case. The justices considered the law's impact on an older statute written into the first Judiciary Act of 1789, which gave the Supreme Court jurisdiction to consider habeas appeals directly, by bypassing lower courts. This law, now in Section 2241 of the Federal Code, has not been used by the Supreme Court since 1925, and is not mentioned in any part of the new law.

The Court, in Felker v. Turner, 518 U.S. __ (1996), dismissed the petition for certiorari for want of jurisdiction and denied the accused's petition for an original writ of habeas corpus. The opinion was unanimous, although Justices Stevens, Souter, and Breyer expressed concurring opinions. Chief Justice Rehnquist delivered the opinion, which held that since the new law does not preclude the U.S. Supreme Court from entertaining a habeas corpus petition filed as an original matter in the Supreme Court, there can be no plausible argument that the law has deprived the Supreme Court of appellate jurisdiction in violation of the Exceptions Clause in Article III, § 2 of the Constitution. He went on to say that the Supreme Court's appellate jurisdiction is subject to such exceptions and regulations as Congress shall make.

The Court also held that the operative provisions of the new law do not violate the Constitu-tion's Suspension Clause, Article I, § 9, cl.2.

Senator Moynihan, however, continues in his efforts to repeal this key provision and has introduced S. 105 to do so. The provision he seeks to be repealed is as follows:

(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Senator Moynihan, despite the opinion in the Felker case, has stated that this provision has introduced a virus into our system of laws that will surely spread. He has said that "to require a Federal court to defer to a State court's judgment unless the State court's decision is 'unreasonably wrong' effectively precludes Federal review. I find this disorienting."

In introducing S. 105, he asked that the full text of a December 8, 1995, letter from four former Attorneys General to President Clinton be printed in the Congressional Record. This letter strongly protested the habeas corpus portions of the proposed legislation as being unconstitutional and urged the president to call upon Congress to remedy those flaws. The letter failed to persuade the president; nonetheless, Senator Moynihan has introduced his bill that, in his opinion, "will repeal this dreadful, unconstitutional provision now in public law."

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