Justice Ginsburg argued that the displacement of state tort law "with no substantive federal standard of conduct to fill the void" creates an outcome that "defies common sense and sound policy." The preemptive power of the Interstate Commerce Commission Termination Act (ICCTA) creates such an outcome. To ensure the Surface Transportation Board (STB) has exclusive regulatory control over railroads, the ICCTA preempts any local or state laws that have a regulatory impact on railroads. If a railroad's activity causes harm to a plaintiff, the plaintiff will likely bring a state tort cause of action against the railroad. Railroads argue that these tort claims have a regulatory impact on their activities and are thus preempted. Plaintiffs, in turn, believe that such claims have only an incidental impact on railroads. Courts have not reached a consensus on whether state tort causes of action are preempted by the ICCTA. When plaintiffs' tort claims are preempted, individuals are left without any remedy. These individuals enter a legal limbo where their state tort claims are preempted by the ICCTA, but where no substitute federal causes of action exist. Consequently, railroads are not held accountable for their tortious behavior, and plaintiffs are left without any legal recourse. The key issue for analysis, then, is how to correct this injustice in the face of the ICCTA's preemptive power. This Comment argues that the legal limbo created by the ICCTA must be corrected. In the past, when a statute had this unjust effect on innocent plaintiffs, Congress amended the statute and reined in the statute's preemptive force. The ICCTA needs similar amending. Alternatively, courts should focus on notions of equity and fairness rather than quibbling over congressional intent. A focus on fairness aligns with the Supreme Court's view of tort preemption and ensures that plaintiffs can seek justice.
"Railroads Running Roughshod: The Preemptive Power of the InterstateCommerce Commission Termination Act on Tort Claims,"
Penn State Law Review: Vol. 123
, Article 6.
Available at: https://elibrary.law.psu.edu/pslr/vol123/iss2/6