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Federal vs. State Cases


The law of negligence is very state oriented. State courts and the state legislatures make those laws. Sure, occasionally federal laws cover certain aspects of personal injury cases but for the most part tort law is state law.

In terms of which courts adjudicate personal injury cases, federal courts are courts of limited jurisdiction by the terms of the constitution. They can only hear certain cases. Those cases include the United States as an active party, cases that bring into question violations of the constitution, other federal questions and then a big catchall: diversity cases. What are diversity cases and why do they enter into this discussion? In tort law you can sue in federal court if you are in a case with diversity of citizenship, and those are cases in which the parties are from different states involving an amount in controversy exceeding $75,000. But, significantly, the federal court in a diversity case will apply the substantive law of the state in which it sits.

The federal court has its own rules of evidence and procedure, but the actual law of negligence, and its associated concepts, are based upon state law. Why? Because that ensures that plaintiffs are not allowed to “forum shop”; that is, they cannot choose the federal court if it were believed to have more favorable laws than the state court. Rather, the law is the same. Hence, the federal court applies the substantive law of the state in which the case is heard. (There can be an issue of conflict of laws but that is beyond the scope of this blog.) There is no federal common law. That is not a clear principle to most of us but I assure you it means that there is no evolving case law from the federal courts that affect personal injury

Certain cases however are preempted, or governed by federal law.

When, for example, a state statute conflicts with a federal one, the federal government is granted the power to claim jurisdiction and apply its law through the doctrine of preemption. This is a right given to it by Article VI, the Supremacy Clause of the constitution. This is important when the two sets of law do come in conflict.

Keep in mind that U.S. Supreme Court has “become decidedly much more inclined to find preemption.” More often than not, the Court has decided that federal law does indeed preempt state law in a given case Riegel v. Medtronic, Inc., 552 US 312 (2008).

But let’s talk about what is far more commonplace and that is where preeemption doesn’t apply. Thus we have sets of laws in the 50 states for tort law. It is not at all a federal legal concept. One way to bring this home is that in my entire 800 page first year law torts case book, there was just one case out of the hundreds that we read that was a United States Supreme Court case. That federal case involved a suit for personal injuries by citizens of North Carolina, where the citizens sought compensation for property damage that they attributed to the sonic boom of U.S. military airplanes. Nelms sued the secretary of defense, who at the time was Melvin Laird, in Laird v. Nelms, 406 U.S. 797 (1972). In its decision, the U.S. Supreme Court excluded the right to recover under the Federal Torts Claims Act. There’s no need for me to go into the decision; the more relevant issue is that out of an 800 page case book there was only one U.S. Supreme Court case. The cases were all state cases and, if they were federal cases, they applied state law anyway.

If you compare the concepts of torts, meaning in this instance negligence cases, to something like criminal procedure you will find a vast difference. Most criminal procedure cases are U.S. Supreme Court cases. After all, it should be the highest judicial body that pronounces the law on all those crucial amendments we hear about: the 13th and especially 14th amendment (due process, equal protection under the law), and various other amendments, such as the original ten amendments. Of those, of particular importance is the 4th (to be free from searches and seizures), the 5th (right against self-incrimination), and the 6th (right to counsel). While a torts book might have one federal case out of 800 pages, in contrast, a criminal procedure casebook may have 500-700 pages of federal and U.S. Supreme Court cases. This is because constitutional issues are interpreted in criminal cases, especially cases dealing with criminal procedure. However, tort cases do not raise constitutional issues, but rather involve the application of the substantive law of the particular state.

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