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Головна Foundations of Aviation Law
Foundations of Aviation LawMichael W. Pearson, Daniel S. Riley
Foundations of Aviation Law is an easy-reading general primer into the often complex world of aviation law, written for aviation students as well as legal professionals who are looking for broad-based, introductory coverage of the subject. The text begins with basic legal concepts that build a foundation for in-depth exploration of aviation-specific subject matter. This allows the instructor to utilize one text in situations where a basic foundation in law is required before moving into aviation law specifics. It includes citations to relevant and key court decisions that provide a solid underpinning for the student of aviation law. The book is divided into six general categories, with fifteen relevant sub-chapters, allowing focused learning into particular areas of law. Throughout it features chapter summaries, key word indices and review questions. The design easily allows instructors to develop syllabi that spotlight the specific area of law that they are interested in exploring, providing comprehensive coverage of both traditional introductory legal concepts and topical aviation subject matter.
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Foundations of Aviation Law This page has been left blank intentionally Foundations of Aviation Law Michael W. Pearson Arizona State University Daniel S. Riley © Michael W. Pearson and Daniel S. Riley 2015 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Michael W. Pearson and Daniel S. Riley have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the authors of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East 110 Cherry Street Union Road Suite 3-1 Farnham Burlington, VT 05401-3818 Surrey, GU9 7PT USA England www.ashgate.com British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library The Library of Congress has cataloged the printed edition as follows: Pearson, Michael W., author. Foundations of aviation law / By Michael W. Pearson and Daniel S. Riley. pages cm Includes bibliographical references and index. ISBN 978-1-4724-4560-5 1. Aeronautics--Law and legislation--United States. I. Riley, Daniel S., 1979- author. II. Title. KF2400.P43 2015 343.7309'7--dc23 2014028897 ISBN 9781472445605 (hbk) ISBN 9781472445636 (pbk) ISBN 9781472445612 (ebk – PDF) ISBN 9781472445629 (ebk – ePUB) II Printed in the United Kingdom by Henry Ling Limited, at the Dorset Press, Dorchester, DT1 1HD Contents List of Figures List of Tables Preface List of Cases List of Acronyms Part I vii ix xi xiii xv Fundamental Principles of Law 1 Jurisprudence and US Legal History 3 2 The US Legal System 19 3 Types and Sources of Law 39 Part II Administrative Aviation Law 4 Aviation Regulation 59 5 Enforcement Actions 81 6 Medical Certification 137 Part III Aviation and the Law 7 Aviation Accident Law 161 8 Aviation Criminal Law 191 9 Aviation Labor Law 223 Part IV Airport Law 10 Airport Zoning and Noise 235 11 Airport Ownership and Operation 251 12 Airport Development and Funding 261 F o u n d at i o n s o f Av i at i o n L aw vi Part V Aviation Business and Insurance 13 Business Entities and Aircraft Transactions 14 Aviation Insurance Part VI 15 275 287 International Law International Aviation Law 307 Selected Bibliography 327 Index329 List of Figures 2.1 The three levels of the federal court system 22 4.1 5.1 5.2 5.3 5.4 5.5 5.6 5.7 The FAA rulemaking process 66 8.1 8.2 8.3 ValuJet Flight 592 criminal indictment article Criminal convictions for violating safety rules article Pilots have limited privacy interest in FAA medical data article 9.1 9.2 Minor disputes Major disputes 225 225 10.1 Apportionment of zoning authority between the city council, planning and development commission, zoning administrator, and the board of adjustment 236 11.1 Typical airport organizational structure 257 15.1 Organizational structure of the ICAO 310 Sample warning notice Sample letter of correction Remedial training letter and syllabus Enforcement action flowcharts Certificate of waiver or authorization Letter of investigation Enforcement decision process 90 91 93 98 105 109 114 192 198 218 This page has been left blank intentionally List of Tables 5.1 Risk assessment and action matrix 115 6.1 Medical certificate duration guide 140 12.1 Project eligibility for AIP funding 266 This page has been left blank intentionally Preface The ever-changing society in which we live requires a basic understanding of the law. Students who anticipate employment in the aviation field should have a working knowledge of the law as applied to aviation topics. We have written Aviation Law in order to present the unique interaction of the law and aviation. While we speak to rudimentary international aviation law subjects, we suggest those interested in an in-depth study of international law refer to International Aviation Law: A Practical Guide, which is also published by Ashgate. Our primary goal is the publication of a textbook that provides an introduction to aviation law appropriate for the education of college-level students at the undergraduate and graduate levels as well as practitioners interested in a basic primer on aviation law subjects. The structure of the text provides the instructor with many options. The book starts with foundational legal material and then delves into specific aviation legal topics. In the event that the instructor is teaching a class of students with limited legal knowledge, a serial approach is suggested. For those only interested in the aviation subjects, we suggest starting at Chapter 4: Aviation Regulation. Law is dynamic and changes over time. However, the fundamentals remain remarkably stable. The US legal system has evolved over several hundred years and is rooted in concepts and processes that are thousands of years old. This text combines explanatory material and case opinions that serve to illustrate legal concepts as applied to aviation. Each chapter presents cases that have been selected in order to expand upon and illustrate the principles of law considered in the text. Cases are in an abbreviated format. In the event that a student or instructor would like to view the full opinion, case titles and citations have been provided. Contributing authors include practitioners in the field who lend a pragmatic flavor to the book. In particular, Gregory A. Pinnell, MD has added a practitioner's view of medical certification in Chapter 6; Chris Bernard, Esq., a former student, helped immensely with the aviation insurance information found in Chapter 14; Cameron Cloar, Esq. and Laurel Lorenzini, Esq. former students and aviation lawyers, assisted with research and proofreading. Additional students contributed research and writing to various chapters. Finally, our family members, friends, and law partners made a sacrifice in allowing us to take valuable time away from the important things in life to draft this text. We owe them great thanks that cannot be adequately expressed through words alone. We welcome comments and criticism regarding the content and presentation of this book. Deciding content when writing a text is extremely difficult. We hope future editions take the reader's wants and needs in mind. Please send any comments to Michael.pearson@ asu.edu or email@example.com. This page has been left blank intentionally List of Cases 1.1 1.2 1.3 Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803) Guille v. Swan, 1 AVI 1 (NY Sup. Ct. 1822) Greenman v. Yuba Power Products, Inc., 59 C2d 57 (1963) 9 13 14 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 American Airlines, Inc. v. City of Audubon Park, 297 F.Supp. 207 (1968) Abdullah v. American Airlines, Inc., 181 F.3d 363 (1999) Elassaad v. Independence Air, Inc., 613 F.3d 119 (2010) Ickes v. Federal Aviation Administration, 299 F.3d 260 (2002) A.L.A. Schechter Poultry Corp. v. US, 295 U.S. 495 (1935) Pinney v. National Transportation Safety Board, 993 F.2d 201 (1993) City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973) British Airways Bd. v. Port Authority of New York, 558 F.2d 75 (1977) 25 26 27 29 31 33 35 35 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 New Hampshire Motor Transport Association v. Rowe, 448 F.3d 66 (2006) Hadley v. Baxendale, 156 Eng. Rep. 145 (1854) Aquila, L.L.C. v. City of Bangor, 2009 WL 902071 (2009) Howell v. Alaska Airlines, Inc., 994 P.2d 901 (2000) Abourezk v. New York Airline, Inc., 705 F.Supp. 656 (1989) Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (1928) Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (1972) Hughes v. Attorney General of Florida, 377 F.3d 1258 (2004) 43 45 46 48 49 50 51 54 4.1 Mistretta v. US, 488 U.S. 361, 372 (1989) 63 5.1 5.2 5.3 5.4 5.5 5.6 Smith v. Helms, Aviation Cases 16 Avi 18,307 (1982) Go Leasing, Inc. v. National Transportation Safety Board, 800 F.2d 1514 (1986) Garvey v. National Transp. Safety Bd., 190 F.3d 571 (1999) Aerial Banners v. FAA, 547 F.3D 1257 Ferguson v. NTSB, 678 F.2d 821 Mendenhall v. NTSB, 92 F.3d 871 82 88 100 106 126 131 6.1 6.2 6.3 Petition of Paul H. Reder Joseph Weiss, Jr. United States of America v. James M. Culliton, 328 F.3d 1074 (2003) 146 147 152 7.1 7.2 7.3 7.4 7.5 7.6 Erie v. Tompkins, 304 U.S. 64 (1938) Catchings v. City of Glendale, 154 Ariz. 420 (1987) U.S. v. Johnson, 481 U.S. 681 (1987) Baxley v. US, 767 F.2d 1095 (1985) Ingham v Eastern Air Lines, Inc., 373 F.2d 227 (1967) Getz v. Boeing, 654 F.3d. 852 (2011) 162 165 170 172 173 178 F o u n d at i o n s o f Av i at i o n L aw xiv 7.7 7.8 Gilding v. Carr, 608 F.Supp.2d 1147 Helman v. Alcoa Global Fasteners, Inc., 637 F.3d 986 180 186 8.1 US v. Parker, 553 F.3d 1309 (2009) 213 10.1 10.2 10.3 10.4 Chanceford Aviation Properties, L.L.P. v. Chanceford Township Board of Supervisors, 923 A.2d 1099 (2007) Kelo v. City of New London, 545 U.S. 469 (2005) County of San Diego v. Bressi, 229 Cal. Rptr. 44 (1986) City of Atlanta v. Watson, 475 S.E.2d 896 (1996) 238 240 242 245 11.1 Safeco Ins. Co. of America v. City of Watertown, S.D., 529 F.Supp. 1220 (1981) 254 12.1 Air Transport Association of America, Inc. v. US Department of Transportation, 613 F.3d 206 (2010) City of Santa Monica v. FAA, 631 F.3d 550 (2011) Arapahoe County Public Airport Authority v. Centennial Express, 956 P.2d 587 (1998) 12.2 12.3 262 267 269 13.1 13.2 Martin v. Freeman, 2012 WL 311660 (2012) Trademasters International, Inc. v. Borer, 687 F.Supp. 434 (1988) 14.1 14.2 14.3 United States Aviation Underwriters, Inc. v. Fitchburg-Leominster Flying Club, Inc., 42 F.3d 84 (1994) 293 White v. Liberty Mutual Insurance Company, 309 N.Y.S.2d 819 (1970) 294 Buffalo Air Park, Inc. v. National General Insurance Co., 15 Avi. 18,432 (1980) 298 15.1 15.2 Block v. Compagnie Nationale Air France, 386 F.2d 323 (1967) United States v. Tiede, 86 F.R.D. 227 (1979) 280 281 319 321 List of Acronyms ACs ADA ADs AFM AGL AIP ALPA AOPA ARAC ARMD ASRS ATC ATO CARs CFR CSRA DOHSA DOT DUI EAJA EASA EDP FAA FAS FBOs FLRA FOIA FSDO FTCA ICAO IFATCA IRS LLC LTO NASA NPRM NTSB OCSLA OOR PATCO PBR Advisory Circulars Airline Deregulation Act Airworthiness Directives Airplane Flight Manual above the ground Airport Improvement Program Air Line Pilots Association Aircraft Owners and Pilots Association Aviation Rulemaking Advisory Committee Aeronautics Research Mission Directorate Aviation Safety Reporting System air traffic control Air Traffic Organization Civil Air Regulations Code of Federal Regulations Civil Service Reform Act Death on the High Seas Act Department of Transportation driving under the influence Equal Access to Justice Act European Aviation Safety Agency Enforcement Decision Process Federal Aviation Administration Federal Air Surgeon fixed-base operators Federal Labor Relations Authority Freedom of Information Act Flight Safety District Office Federal Tort Claims Act International Civil Aviation Organization International Federation of Air Traffic Controllers Association Internal Revenue Service limited liability company landing and takeoff National Aeronautics and Space Administration Notices of Proposed Rulemaking National Transportation Safety Board Outer Continental Shelf Lands Act Office of Rulemaking Professional Air Traffic Controllers Organization Pilots' Bill of Rights xvi PEB PMS POH SARPs SBA TBO TSA U.S.C. UN VFR F o u n d at i o n s o f Av i at i o n L aw Presidential Emergency Board Personnel Management System Pilot's Operating Handbook Standards and Recommended Practices Small Business Administration time between overhaul Transportation Security Administration United States Code United Nations visual flight rules Part I Fundamental Principles of Law This page has been left blank intentionally 1 Jurisprudence and US Legal History In America, the law is King! Thomas Paine, 1776 Chapter Objectives After reading this introductory chapter, you should: 1. 2. 3. 4. have a basic understanding of the history of the US legal system; understand the difference between the Constitution, common law, and statutes; have a basic understanding of the various categories and types of law; have a fundamental understanding of various international legal systems. I n t r o d uc t i o n Aviation law is a specialized area of law that concerns all aspects of flight and associated concerns. It often overlaps with other areas of law, including admiralty and international law. Commercial aspects of aviation also fall under the category of aviation law. In the US, the Federal Aviation Administration (FAA) regulates all aspects of flight. While states cannot regulate aviation matters covered specifically by federal law, they often pass laws that fill in the gaps. In the international arena the International Civil Aviation Organization (ICAO), which is part of the United Nations (UN), regulates aviation matters. As we will explore throughout this book, aviation law is often complex in that the various bodies of law pertaining to aviation are interstitial and sometimes conflict. While this text is focused on aviation, it is written from the general to the specific. The study of the law necessarily requires that students have a basic understanding of the history of the subject matter. As a fundamental precept and for the purposes of this text, we define law as the legal system in which we operate. A thorough and comprehensive thesis of jurisprudence, or the philosophy of the law, and the history of the US legal system is well beyond the scope of this text. The goal of this chapter is to give the student a rudimentary historical framework and context in order to better understand the modern legal system. We start with an explanation of law and jurisprudence and will then move forward into a general discussion of some of the key historical concepts, principles, and events that have shaped the current legal landscape. We follow this with a discussion of international legal systems and a brief introduction to aviation law. It is our hope that 4 F o u n d at i o n s o f Av i at i o n L aw you develop an appreciation for the fundamental role that law plays in our society. As you progress through the chapters, you will find that, whether you previously realized it or not, you make decisions having legal impacts and consequences on a daily basis. In all likelihood, most of your involvement and interaction with the law has been on a subconscious level. The understanding of your legal rights and obligations is a key step in being able to proficiently navigate personal and professional issues that will challenge you throughout your life. Jurisprudence The term "jurisprudence" originates from the Latin word juris prudentia, which means "the study, knowledge, or science of law." Jurisprudence is the theory and philosophy of law. There are many different theories and philosophies of the law. In the US the study of jurisprudence involves three main areas: natural law, analytical jurisprudence, and normative jurisprudence. Natural law involves the concept that there are immutable principles of nature that govern individuals and society that should be the foundation for our legal system. Analytic jurisprudence seeks to answer questions germane to legal philosophy like "What is the purpose of law?" Normative jurisprudence looks at the issue from a different, more theoretical view and asks what the law ought to be. Different cultures have different and disparate views of jurisprudence and the philosophy of the law. Jurisprudence is thinking about law in general. How law has evolved, implications for the society we live in, and the impact of the law is left to jurisprudence. As this text is focused on application versus theory, we begin our study of the law by exploring our legal legacy. L e g a l H i s t o r y : O u r H e r i ta g e Compared to most, the US is a relatively new country. While our legal heritage flows from England, it has historic influences from many other aged legal systems and cultures. The legacy of early settlers including the Spanish, French, Swedes and Dutch all shaped and formed US law to varying extents. While different cultures added to our current law, the largest influence has certainly been England and English common law. As such, our law is very different from other forms of European law that base their systems on statutes. Common law refers to judge-made law. Thus, Anglo-Saxon English law was originally based on the mores, thoughts, and societal values of the English population. Originally there were no lawyers or judges by trade. The original "judges" were called witans and were actually ministers or counselors. The witans would meet and listen to cases in the Witenagemot. The term "Witenagemot" was derived by combining witan with the old English term "gemot," meaning meeting or assembly. The Witenagemot possessed the equivalent of modern-day judicial as well as legislative functions and power. Over time, judges would determine cases by applying the laws and customs to specific factual situations. These decisions were written down, used, and further developed by other judges who would apply the law found in prior decisions to the case at hand. The judges relied on these earlier decisions, or "precedent," in refining and applying the common law. Basing decisions on such prior precedent results in law that evolves c h a p t e r 1 • J u r i s p r u d e n c e a n d US L e g a l H i s t o r y 5 slowly, yet is able to vary with societal and moral change. In addition, the use of precedent in judicial decision making also provides the necessary stability and clarity to the law. Judges have the power to disregard precedent and over-rule a prior case if the application of precedent to a factual situation would result in manifest unjustness. However, the concept of stare decisis provides a governor on rogue abuse of judicial power. As stated in In re Osborne: Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere – "to stand by and adhere to decisions and not disturb what is settled."1 In addition to various common law courts, called Common Pleas, King's or Queen's Bench, and Exchequer, the English had Courts of Chancellery. These courts, which were administered by royal officials called chancellors, were actually clergymen, who did not follow common law doctrines. These courts relied heavily on ecclesiastical, or churchmade, law. Chancellors, through chancery courts and principles called "equity," had the ability to ignore unfair laws or rules. In the Court of Chancellery you could win your case regardless of legal formalities if the chancellor hearing your case felt that justice was on your side. While the common law defined rights and obligations, equity had the power to compel performance. Common law remedies revolved around monetary damages while equitable remedies involved power to compel individuals to refrain from doing something they were entitled to, or to require them to do something they didn't want to do. Such power to compel was enforced by contempt orders where a party could be jailed if they failed to take action as ordered by the court. The English system, with its various courts, was specialized and intricate. Jurisdiction often overlapped. Other English courts vied with equity and common law courts. Royal courts, merchant courts, and admiralty courts all had different areas of jurisdiction and functions. Courts of equity and common law merged in the nineteenth century. The various principles and doctrines of the common law and equity are now applied in a single court. As the colonists' heritage was largely English, the common law, equity, and various English court doctrines provided a foundation for a rising nation. English law was not strictly founded on judge-made law. Much law came from Parliament, as well as royalty, through the king. Prior to the eleventh century, the law was largely unwritten. The Norman invasion in 1066 influenced and shaped the English legal system due to the infusion of the code-based Roman civil law that was introduced by the Normans. The Normans replaced the Witenagemot with the King's Court called the Curia Regis. The Curia Regis provided the seeds for a central court system and the subsequent law became interstitial in that the common law composed of the customs of the people blended with the Roman civil law system brought over by the Normans. Some such statutory law had a weighty effect on the colonies. The Magna Carta, also called the Great Charter of Freedoms, was originally issued in 1215. King John was improperly governing and over-taxing the country, so influential barons created a document to restrict his powers. It basically required the King to admit that the law could bind the monarchy. It specifically protected certain rights of the King's subjects and allowed a process to appeal unlawful imprisonment. The Magna Carta influenced the development 1 United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) para. 50,185 (9th Cir. 1996). 6 F o u n d at i o n s o f Av i at i o n L aw of the common law and led to the principle of constitutional law that is the foundation of the US legal system. Early Times: The Colonial Period Courts as well as judges came to America with the colonists. Documentation regarding this earliest period of American law consists of remnants. Although a few early reports of American common law (referred to by lawyers as "case law") exist, they did not become readily available until after the revolutionary war. Colonial charters, issued by the British government, outlined the rights of the colonists. The earliest legal systems in the colonies closely resembled martial law. There were no refined legal systems as we know of them today. Colonial life was difficult at best and sophisticated legal systems, like those in England, were simply not in existence. While the British colonized along the eastern seaboard, the distance and lack of any real colonial policy ensured that early English control was marginal. The distance also ensured that the leaders of the local colony had ultimate power to make, as well as enforce, the law. As the colonies were geographically isolated, each system grew independently and had its own idiosyncrasies. The religious and political ideologies of the various colonies had a marked effect on the various legal systems. Colonial law was largely composed of local custom and practice blended with bits and pieces of the English system. As the early settlements more or less developed their own legal systems in segregation from other colonies, the various systems were usually a combination of what the settlers recalled about English common law, local custom, political, and religious beliefs. Therefore, early colonial law was localized, was often not written down, and was certainly a major departure from the structure, process, and sophistication of the mature and fully developed English legal system. In the mid-eighteenth century, the British began a series of actions that angered a large percentage of the colonial population. At the time that the Revolution started, there were 26 British colonies. Britain adopted many laws that were burdensome to the colonists, closed Boston's port, reorganized colonial governments, and sought to tax the colonists. These actions and events greatly angered a large number of the colonists. This anger gradually increased and eventually led to the American Revolution. The Revolution While the fighting started in Lexington, Massachusetts in April 1775, the colonists didn't formally declare themselves independent of England until 1776. With independence came the daunting task of establishing a new government. The first attempt resulted in the Articles of Confederation. Adopted in 1781, the Articles of Confederation was the original governing constitution of the original 13 states. It had the effect of legally uniting the states into the "United States of America" with a confederation form of government. Under the Articles, the states individually retained much autonomy and sovereignty over all governmental functions that were not explicitly delegated to the new national government. Fairly quickly, a powerful political group known as the "Federalists" determined that the Articles were impotent and that the new national government lacked any real authority. Dissatisfaction also occurred due to the perceived imbalance between the large and small states regarding the legislative process and the division of power. c h a p t e r 1 • J u r i s p r u d e n c e a n d US L e g a l H i s t o r y 7 Due to this discontent, the US Constitution eventually replaced the Articles. The document took years to craft and was eventually adopted in 1787 by the Constitutional Convention setting in Philadelphia, Pennsylvania. When the ninth state (New Hampshire) ratified the Constitution, it became the governing document as only nine of the original 13 states were required to formally adopt it for it to be given effect. The Constitution was later ratified by conventions in each US state. As we will explore in Chapter 2, the Constitution is the foundation for the US legal system and changed the early government from a loose confederation to a strong federation. It is a remarkable document framed by those seeking to establish a form of government, which was up to that point unheard of. The Constitution has three main Articles that establish our tripartite, or three-"branch," form of government. Article 1 of the Constitution deals exclusively with the powers conferred and restrictions placed upon our national legislature. Article 2 enumerates the powers possessed by the executive branch (the President). Article 3, as well as the subsequently added first 10 Amendments to the Constitution known as the Bill of Rights, creates an independent judiciary where a person could seek a remedy for perceived wrongs from an unbiased tribunal. The framers of the Constitution specifically wanted an independent judicial system to ensure individual rights against tyranny. The new government was to be one of laws and rules that applied to all citizens equally, regardless of heritage or position. An Emerging Nation The separation caused by the revolutionary war did not sever the legal heritage. The states incorporated, more-or-less, the complete body of English common law existing at the time of the parting. Blackstone's seminal Commentaries on the Laws of England acted as a guide and sourcebook for an emerging nation that had few published legal texts or primers. As outlined above, and out of necessity and pragmatics, colonial law was a bare-bones version of the sophisticated British legal system. In addition, the colonists added a few unique institutions unknown to the British monarchy. One shameful institution was the establishment of slavery. While the Portuguese and Spanish enslaved people in the sixteenth century in order to operate the sugar industry, slavery was unheard of in England. There is some evidence that slavery started in the early 1600s in the colonies. While slavery is typically associated with black men and women transported from Africa, colonists also enslaved American Indians. In addition, there were many white "indentured servants" who were enslaved for a temporary period of time before they were able to achieve total freedom. The slave population was very important to the economic growth of our country and became very significant in the southern colonies. Therefore, a body of law developed that was specific to slavery. While the institution of slavery is abhorrent and an embarrassment to the US, it played an important role in the development of the country. Another institution, peculiar to the colonies, was ownership of land. In England land was held, generation after generation, by select families. Real property was held by a very small fraction of the population – certainly less than two percent. The oldest son of the family inherited land. The colonists, in contrast, were able to own and obtain large tracts of land. While the ownership of such land could certainly pass through inheritance, it was also often sold between different parties as the colonists didn't feel the need to keep large estates intact and owned by a single family. Property law governs the various forms of ownership in land (often called "real property") and in personal property in the common 8 F o u n d at i o n s o f Av i at i o n L aw law legal system. In the common law system there is a legal distinction between movable (personal property) and immovable property (land and items attached to the land). Politics and the Law While this text does not delve into political science, failing to mention the effect of the political process on the development and maturity of our legal system would be akin to painting an incomplete landscape. From the inception of the great union that evolved into the United States of America, there have been philosophical battles, fought through the political process, regarding the legal rights and obligations of the nation's citizens. The original political parties no longer exist and therefore have no adherents that run for office. Other than the "Democrats" and "Republicans," and various adaptations of these parties, only two other parties have won the US presidency: the "Federalists" and the "Whigs." America's founding fathers considered opposing factions a very real danger to a democratic society. However, two opposing schools of thought started to emerge concurrently with our independence. The axis of each school of thought, or "party," formed around members of the cabinet of the first President, George Washington. The parties that emerged from these philosophies were called the Federalists and the Democratic-Republicans. The opposing parties were led by founding fathers John Adams, a Federalist, on one side and his friend Thomas Jefferson, a Democratic-Republican, on the other. The Federalists basically favored a strong centralized national government. They also favored industry and economic development and wanted to maintain strong relations with England. John Adams was the leader of this movement. Jefferson's DemocraticRepublican Party favored small government, agrarian interests, states' rights, and extensive freedoms for citizens from excessive government intrusion. Such opposing political viewpoints continue to have a profound effect on the US legal system. As we will discuss in Chapter 2, the battle is fought through the election of accountable officials as well as through the appointment of judges that have lifetime tenure, and therefore are arguably unaccountable to the electorate, to our highest courts. George Washington announced his retirement in 1796 and John Adams and his Federalist supporters in the Senate succeeded him. By 1800, the Federalist Party's popularity was declining and Jefferson's Democratic-Republican Party was becoming a powerful political influence. The Federalist party lost so much influence and power that John Adams was the only Federalist ever elected to the presidency. The Democratic-Republicans enjoyed a period of success that lasted until 1824. In that year, divisions and in-fighting occurred, which led to four different Democratic-Republicans running for the office of president. The race was so close and discordant that the House of Representatives actually had to decide the race. John Adam's son, John Quincy Adams, was made President through this process even though he received less of the popular and electoral votes than Andrew Jackson. The growing evolution of the political parties is evidenced by the fact that John Quincy Adams himself was a member of multiple political parties, including the Federalist, DemocraticRepublican, National Republican, and later "Anti-Masonic" and Whig parties. The fierce battle over the 1824 presidency led to a group of the Democratic-Republican party, led by Jackson, forming what would eventually evolve into today's Democratic Party. The opposing faction organized a party called the "National Republicans." President Jackson held office for two terms. The National Republicans joined with other parties that opposed Jackson and formed a new party called the Whigs. The Whigs' c h a p t e r 1 • J u r i s p r u d e n c e a n d US L e g a l H i s t o r y 9 platform advocated economic development projects and congressional power that exceeded that of the President. In reality the Whigs maintained party identity by simply being in opposition to the Democrats. Between 1840 and 1852, the Whigs were a powerful national influence and four Whigs served as president. Tensions eventually leading to the Civil War destroyed the Whig party in the 1850s. Abraham Lincoln was first a Whig when he served in Congress. However, by the time he ran for the presidency in 1860, he was associated with a new party called the Republicans. With the exception of minor movements with largely regional significance, it has been Republicans vs. Democrats, on a national scene, ever since. As we will see in the later chapters, the political influence on our legal system is profound. Ever since the seminal case Marbury v. Madison and the development of the principle called judicial review, the political ideology and composition of the Supreme Court obviously has significant consequences on the rights and obligations of the citizens of the US (see Case 1.1 below). As elected officials appoint (the President) and confirm (the Senate) Supreme Court candidates, the process is political and often overly partisan in nature. Under our representative form of government, the President as well as the various members of Congress are elected and necessarily shape the law based upon individual and collective political ideologies formed by individual as well as collective morals, ideals, and principles. Political parties are often formed around groups sharing a common interest in terms of what they believe to be the best form of government. The most common political ideologies in the US are conservatism, libertarianism, and liberalism. While it is difficult to segregate the various ideologies, conservatives believe in fiscal and social restraint, conservatism, support for a strong military, and shared power between the federal and state governments. Libertarians prioritize individual liberty and seek to diminish government (state and federal) intrusion upon their lives. The liberal ideology is often defined by a belief in large government and regulation of business as well as individual freedoms for the good of society as a whole. Case 1.1 Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803) US Supreme Court FACTS: William Marbury was one of President Adams' "midnight appointments" attempted in the last hours of his administration. All of the necessary paperwork and procedures were completed to secure his appointment as a justice of the peace in Washington, D.C., but Secretary of State John Marshall failed to deliver his commission. Upon assuming the presidency, Jefferson ordered his Secretary of State James Madison not to deliver the commission. Under authority of the Judiciary Act of 1789, Marbury sued to ask the Supreme Court to issue a writ of mandamus to force Madison to deliver the commission. ISSUE: 1) Does Marbury have a right to this commission? 2) If Marbury has a right, is there a remedy at law to realize it? 3) If there is a remedy, is it one that can issue from the Supreme Court? HOLDING: 1) Yes. Because Marbury's commission was signed by the President and sealed by the Secretary of State, he has a legal right to the commission; 2) Yes. Because the 10 F o u n d at i o n s o f Av i at i o n L aw signing and sealing completed the appointment process, denial of the commission is a violation of the law. In a government of laws, a violation of the law creates a governmental responsibility to remedy the violation. A writ of mandamus is such a remedy. 3) No. The Constitution is the "supreme law of the land." As such, it is "superior" and "fundamental and paramount." It establishes "certain limits" on the power of the government it creates. This includes Congress. Without such limits, "it would be giving to the legislature a practical and real omnipotence." Thus, "a legislative act contrary to the Constitution is not law." "It is emphatically the province and duty of the judicial department to say what the law is." When a case comes to the Supreme Court, the Court must decide that case according to the law. If "ordinary" (statutory) legislation conflicts with the limits imposed on government by the Constitution, the fundamental law must govern the ordinary. If the legislature passed an act that the Constitution forbids – like a tax on interstate sales, an ex post facto (law enacted after the act) law, or a treason conviction based on something other than two witnesses or a confession in court, the courts would have to strike it down, otherwise the Constitution would not limit government. The courts have this power because they decide cases under law; judges take an oath to uphold the Constitution, and this is part of that function. Following these principles, Marbury cannot receive a mandamus from the Court. The Constitution creates two categories of jurisdiction for the Supreme Court – original and appellate. Congress, under Article III, has the power to regulate appellate jurisdiction; however, no such power is given for the regulation of original jurisdiction. Article III completely and exclusively defines the latter – it cannot be added to or taken away from. Therefore, the provision of the Judiciary Act 1789 that added matters of mandamus to the original jurisdiction of the Court is beyond the power given to Congress by the people in the Constitution. Having no legitimate jurisdiction over this matter, the Court cannot provide Marbury with the remedy he seeks. Therefore, the case was dismissed for lack of jurisdiction. John Marshall, relying heavily on "logical reasoning" and little constitutional text, read the power of judicial review over acts of the national government into American constitutional law. This power was extended over the actions of state governments in Martin v. Hunter's Lessee (1816) and state courts in Cohens v. Virginia (1819), and is: 1) the source of most of the authority the Court has come to know; and 2) the focal point of the ultimate debate about the Court's proper constitutional role – should it exercise this power frequently (judicial activism) or sparingly (judicial restraint)? The Constitution, the Common Law, and Statutes While the Constitution is the foundation of the US legal system, the system itself is often complex and difficult for the legal novice to comprehend. While this chapter focuses on the macro-history and progression of the US system, the following chapters are necessarily more focused in scope and provide a developed subject matter-specific taxonomy. While we have briefly mentioned the influence and effect of the US Constitution, law made by legislative bodies called statutes, and judge-made or interpretations of various statutes called common law, the rise of the administrative state and administrative law has perhaps had the most profound effect on our legal system. In addition, individual states have constitutions as well as legislatures, chief executives called Governors, and administrative bodies. c h a p t e r 1 • J u r i s p r u d e n c e a n d US L e g a l H i s t o r y 11 Although the original colonists were British initially, there were competing legal systems. Spanish and French settlers brought a heritage of "civil law" to the emerging country. Civil law refers to a code or statute-based system that is the actually the principal system of law in the world. In civil law jurisdictions judges apply a written code to the cases before them. This is very different from the common law system where judges utilize law developed from prior cases and apply the principles to the facts at issue in a particular case. In the common law system, law is made by appellate court judges who hear cases that are appealed from the trial court level. As the territories opened, large groups of lawyers and judges trained in the common law settled areas with civil law customs and over time the common law became the norm. However, remnants of civil law are found in some states – Louisiana law is still largely based on the French Civil Code and the language of court proceedings, statutes, regulations, and case law in Puerto Rico is Spanish. The development of the law over the last 200 years has necessarily been a reflection on the needs as well as "wants" of our society. As we moved from an agrarian, to industrial, and into the "information" age, our legal needs have likewise evolved. Roughly speaking, our system has required the creation or adaption of various bodies of law and legal doctrines to meet the needs of a complex and diverse society. Contract Law and Economic Expansion The free market economy and the needs of a growing nation stimulated the development of contract law. Compared to today's administrative state, the colonists and early settlers certainly lived and operated in a much less regulated, unhindered, and laissezfaire environment. Principles of contract and private property were well known by the colonists. Most early nineteenth-century regulation of business actually occurred due to state, and not the federal government's, intervention. As the country moved from an agrarian to an industrial state, laws were passed to facilitate economic growth. Commercial and transactional law further developed in order to provide a framework for national expansion. Laws, both state and federal, were focused on the establishment of the transportation infrastructure necessary to support a growing nation. As this period was well before the advent of national taxation, the federal government used land and land grants to kindle growth. These grants went to various entities, but were mostly used to establish railroads, canals, and roadways. In the subsequent chapters we will review the impact of commercial and transactional law, specifically focusing on the body of law known as contract law and on the growth and maturity of the US free market system. Without contract law, our free market economy simply could not exist. Over time, the involvement of the federal and state government, along with various administrative agencies, has greatly increased the amount of regulation pertaining to various commercial industries. This in turn has had a direct impact on our economic environment and, by natural extension, our daily lives. Administrative Law We will also review the twentieth-century development of the administrative state. This development greatly increased the involvement of both federal and state governments into areas unimagined by the colonists and framers of our Constitution. Arguably this has had positive as well as negative effects on our daily lives. Administrative agencies are created by federal, state, and local lawmaking authorities to oversee matters of 12 F o u n d at i o n s o f Av i at i o n L aw governmental concern beyond the normal expertise of legislators. As discussed in the later chapters, administrative agencies have limited legislative, executive, and judicial functions. Regulations passed by the various agencies have the force of law and violations of agency rules can have criminal, as well as civil, consequences. The FAA is an example of a federal administrative agency. The expansion of government programs and agencies necessarily required increased taxation to fund the various programs and organizations. The nation had few taxes in its early history. Early on, the government was supported by taxes on alcohol, sugar, tobacco products, certain auction property, and slaves. During periods of war, various sales taxes were implemented on items such as precious metals and jewelry. Congress did away with all internal taxes in 1817, relying instead on taxation of imported goods to provide funds for running the national government. The first income tax law was passed by Congress and signed into law in 1862. The law was passed in order to support the Civil War effort. The Revenue Act of 1862 established an administrative agency known as the office of the Commissioner of Internal Revenue. The powers to collect taxes and enforce the tax laws remain very much the same today as when the law was originally passed. Some 10 years after enactment, the income tax was eliminated. It briefly reappeared in 1894–95. In 1895 the Supreme Court held the income tax to be unconstitutional. Congress enacted the current federal income tax structure in 1913 after the Sixteenth Amendment to the Constitution was ratified. This ratification gave Congress the authority to tax corporate as well as personal income. The initial income tax rates were progressive yet very low. As the FAA is the federal agency tasked with rule making and enforcement regarding aviation specific matters, the Internal Revenue Service is the federal administrative agency charged with the collection of taxes. The administrative state is expansive and there are hundreds of federal administrative and thousands of state agencies, with the delegated authority to regulate in most areas of our lives. Tort Law Tort law is the name given to an area of law that provides remedies for civil wrongs that do not arise out of contractual duties. While there are many categories of tort law, such as negligence or unintentional torts, intentional torts, strict liability torts, statutory torts, and economic torts, tort law is basically injury law. A person who is injured uses this body of law to recover damages from someone who is legally responsible for the injuries suffered. Generally speaking, tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another's injury. The injuries can be personal or economic. Torts cover intentional acts as well as negligent acts or accidents. Aviation torts can be very complex and, as we will see in future chapters, various doctrines apply to public and private litigants. The common law, as imported from Britain, had many basic tort law doctrines that were applied to aviation cases very early on in our nation's history (see Case 1.2). c h a p t e r 1 • J u r i s p r u d e n c e a n d US L e g a l H i s t o r y Case 1.2 13 Guille v. Swan, 1 AVI 1 (NY Sup. Ct. 1822) Supreme Court of New York FACTS: Swan, a balloonist, crash-landed in a private New York garden. He landed with his body hanging outside of the basket and called a passer-by to assist. After the balloon landed, it dragged approximately 30 feet through the plaintiff's garden, allegedly causing damage to his potato and radish crop. Soon after Swan landed, a group of approximately 200 onlookers broke through Guille's garden, causing further substantial damage. The damage caused by the defendant's actual crash was approximately $15. The damage by the crowd of onlookers was approximately $90. Guille sued Swan, alleging that Swan was liable for the full amount of damages. Swan maintained he was only responsible for the damage caused by the balloon and not the subsequent activity of the crowd. ISSUE: Was Swan responsible not only for the damage caused by his negligent act, but also for the damage caused by the crowd? HOLDING: Yes. The Court reasoned that one person might be liable for the acts of others if the act of the individual ordinarily and naturally produced the acts of the others. It reasoned that the intent with which an act is done is by no means the test of the liability of a party. The court further relied on English case law (Scott v. Shepard, 2 Black. Rep. 892) regarding causation. In this case it was determined that a person engaging in negligent activity was responsible for the resulting damage caused by the negligent activity. Prior to the nineteenth century, tort law was under-developed and was largely of no consequence in the agrarian US. The expansion of tort law, specifically unintentional torts called negligence, was largely concurrent with the Industrial Revolution. The frenzied growth of factories, railroads, and maritime endeavors all caused injuries in large numbers. Tort law evolved rapidly in response to the industrialization of our nation and the unique demands of a changing population. The doctrine of strict liability for defective products was one such development. In 1963 the Supreme Court of California imposed strict liability for defective products in the case of Greenman v. Yuba Power Products, Inc. (see Case 1.3 below). Subsequently law regarding strict product liability was adopted by many international jurisdictions. Strict product liability often plays a major role in aviation litigation. F o u n d at i o n s o f Av i at i o n L aw 14 Case 1.3 Greenman v. Yuba Power Products, Inc., 59 C2d 57 (1963) Supreme Court of California FACTS: Mr Greenman purchased a combination power tool, called a "Shopsmith," that could be used as a saw, drill, and wood lathe. He saw it demonstrated and read the brochure prepared by the manufacturer. He subsequently purchased the necessary attachments to use the Shopsmith as a lathe. After he had worked on the piece of wood several times, it flew out of the machine and struck him in the forehead, inflicting serious injuries. An expert testified that inadequate screws were used to hold parts of the machine together and there were other positive ways of fastening the parts which would have prevented the accident. ISSUE: Was the manufacturer Yuba Power Products was strictly liable for the injury complained of by Mr Greenman as a result of a defect in the Shopsmith? HOLDING: A manufacturer is strictly liable in tort when an article placed on the market, knowing that it is to be used without inspection by the purchaser for defects, proves to have a defect that causes an injury to a human being. Implicit in the machine's presence on the market was a representation that it would safely do the jobs for which it was built. Therefore, to establish the manufacturer's liability, it was sufficient that Mr Greenman proved that he was injured while using the Shopsmith in a way in which it was intended to be used, as a result of a defect in design and manufacture of which he was not aware, that made the Shopsmith unsafe for its intended use. The Court reasoned that the purpose of such liability is to ensure that the costs of injuries resulting from defective products are borne by the manufacturer that put such products on the market rather than by the injured persons who are powerless to protect themselves. Criminal Law Criminal law refers to statutory law, enacted by a public body such as Congress or a state legislature, imposing punishment for failure to conform. While tort law is a private cause of action, the violation of a criminal statute involves conduct that society deems unjust. There is often an overlap between criminal law and tort law. In our legal system, assault is a crime as well as an intentional tort. Tort law allows an individual or entity to seek recourse, called a "remedy," for injuries suffered due to intentional or negligent acts of another person or entity. As we will explore in future chapters, tort law remedies are most often monetary in nature. In contrast, violations of the criminal law, as enacted by various government bodies, are prosecuted in order to discourage certain conduct that society has deemed wrongful. Violation of the criminal law can lead to imprisonment as well as monetary penalties. In the criminal system monetary compensation is called "restitution." As criminal penalties are much more severe than civil remedies and often involve the restriction of an individual's constitutional rights (freedom of movement, among others), a higher burden of proof is required for conviction of a crime than that to determine liability for a civil wrong. Burden of proof refers to the standard required to prove allegations in a legal action. In criminal actions the government must be prove the alleged violations of the law to the extent that there is no "reasonable doubt" in the mind of a reasonable c h a p t e r 1 • J u r i s p r u d e n c e a n d US L e g a l H i s t o r y 15 person that the defendant is guilty. In contrast, most civil lawsuits require the person bringing the lawsuit to prove by a "preponderance of the evidence" the elements outlined in their lawsuit. Preponderance of evidence means simply that the matter asserted seem more likely to be true than not. Early societies and cultures did not separate criminal from civil law. The modern distinction occurred following the Norman invasion of England. The definition of a crime depends on the mores and beliefs of society. Such moral notions and beliefs often change dramatically over time. Colonial criminal law was defined and based on the moral consensus of the community. During the colonial period, idleness, blasphemy, and fornication or unmarried couples having sex were against the law and were often severely punished. The early colonists treated "criminals" very harshly. Public whippings and brandings were not uncommon. Multiple offenses of the same crime often resulted in a death sentence. During the eighteenth century, jails were used to hold those awaiting criminal trial and debtors. Incarceration was uncommon and the chief deterrent to criminal conduct was shame and severe punishment. In the nineteenth century, prisons in which prisoners were incarcerated and held as part of their punishment became commonplace. The goal of these facilities was atonement by the prisoners. It was not until late in the nineteenth century that rehabilitation became the standard goal of prisons. After the revolutionary war, police forces were established in the larger cities to maintain order. In addition, the various criminal laws were codified. The codification of the criminal laws in the early nineteenth century meant an end to common law criminal laws. Criminal laws were now the sole prerogative of the various legislative bodies. The federal government took a much more active role in criminal justice in the twentieth century. Much of this activity has been due to the tremendous expansion of the administrative state. As we will see in Chapter 9, violation of federal statutes specifically related to aviation can lead to criminal as well as civil penalties. As the substantive criminal law has changed to meet the needs of society, procedural protections for the criminally accused have evolved over time. There is a difference between constitutional and statutory criminal procedure. While the Constitution and case law interpreting constitutional safeguards provide rights to those accused of crimes, statutory rules govern the conduct of criminal trials at both the state and federal levels. Rules of statutory criminal procedure (which are regularly revised) may afford defendants more protection than constitutional criminal procedure, but may not afford less protection. Other Legal Systems Comparative law is the study of differences and similarities between the law of different countries or jurisdictions. While there are a multitude of different legal systems in the world, we categorize the systems as common law, civil law, customary law, religious law, and mixed forms in order to provide a manageable body of knowledge for the beginning law student. Aviation is a global industry and therefore it is important that aviation professionals acquire a basic knowledge of the various legal doctrines and systems that impact the industry. As discussed above, the US legal system is one of common law with civil law influences. Common law systems are those whose law is based on English common law concepts that emphasize case law, as opposed to legislation, for the general law. The common law system has certainly taken on different forms throughout the world based on site-specific cultural influences. The UK, Canada, Ireland, Australia, and New Zealand are among the many countries that are in the common law category. In addition, the following 16 F o u n d at i o n s o f Av i at i o n L aw illustrative countries or jurisdictions have mixed systems of common and other forms of law: Louisiana and Puerto Rico (US), Scotland, the Philippines, Thailand, South Africa, Pakistan, Singapore, and the United Arab Emirates. Civil law jurisdictions draw upon Roman legal heritage and rely on elaborate systems of written codified law as opposed to relying primarily on case law. Civil law systems include most of South America (including Argentina, Bolivia, Brazil, Columbia, Costa Rica, and Chile) as well as Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cuba, the Czech Republic, Denmark, Finland, France, Germany, Greece, Iceland, Italy, Mexico, Norway, Panama, Poland, Russia, Spain, Sweden, and Switzerland. The vast majority of the world relies on either a civil or mixed civil law system. Customary law refers to law derived and developed by custom. Customary law is a form of law wherein each individual recognizes the benefits of behaving in accordance with other individuals' expectations. The source of customary law is reciprocal behavior. Offenses are treated as torts rather than offenses against society as a whole. With the exception of Andorra, Guernsey, and Jersey, it would be difficult to identify a jurisdiction that operates under a purely customary legal system. However, many jurisdictions have legal systems that rely significantly on custom, philosophical, spiritual, or cultural influences. Among the mixed systems with customary influences are: China, Hong Kong, India, Indonesia, Japan, Malaysia, North Korea, South Korea, and Taiwan. Religious law systems are those that are independent in nature and based upon religious tenets. These tenets are used as the source of law. Such law can be thought of as revealed by God or a higher deity. Christianity (including canon law), Hindu law, Halakha (Jewish religious law), and Islamic law are religious law systems utilized in one form or another worldwide. Islamic law is the most widely used religious law and, along with common and civil law, is one of the three most common legal systems in the world. Jurisdictions with forms of religious law include: Afghanistan, Iran, Libya, and Saudi Arabia. Egypt, Syria, and Jordan are among the countries that have mixed systems with religious law asserting a strong influence. c h a p t e r 1 • J u r i s p r u d e n c e a n d US L e g a l H i s t o r y Terms and Concepts Abraham Lincoln Administrative law Administrative state Analytical jurisprudence Andrew Jackson Appellate Court Articles of Confederation Bill of Rights Blackstone Case law Civil Code Colonial charter Commentaries on the Laws of England Common law Comparative law Congress Conservatism Constitutional Convention Contract Criminal procedure Curia Regis Customary law Democrat Equity Federal Aviation Administration Federal Aviation Regulations Federalist Federalists George Washington Greenman v. Yuba Power products House of Representatives Indentured servant Internal Revenue Service John Adams John Quincy Adams Jurisprudence Liberalism Libertarianism Magna Carta Marbury v. Madison National Republicans Natural law Normative jurisprudence Personal property Precedent Prepondera\nce of evidence President Real property Reasonable doubt Religious law Remedy Republican Restitution Revolutionary War Senate Stare decisis Strict liability Supreme Court Tax Act of 1862 Thomas Jefferson Tort US Constitution Whig Witans Witenagemot 17 F o u n d at i o n s o f Av i at i o n L aw 18 Review Questions 1. 2. 3. 4. 5. 6. 7. 8. 9. What does jurisprudence mean? What is common law? Explain stare decisis and the importance of the concept in our system of law. What are the Articles of Confederation? What are the three main Articles of the US Constitution? Marbury v. Madison is often cited for establishing what legal principle? Civil law refers to what type of legal system? What is the function of an administrative agency? What is the difference between customary and religious law? 2 The US Legal System Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of control. Justice Robert H. Jackson C h a p t e r O b j e ct i v e s After reading this chapter, you should: 1. 2. 3. 4. 5. 6. 7. 8. understand the historical context behind the drafting of the US Constitution; understand the structure and jurisdiction of the federal and state judiciaries; understand how the US Constitution divides power between the state and federal government; understand the concept of federal preemption of state law; understand the scope of the federal government's power to regulate commerce; have a basic understanding of how lawsuits proceed in federal court, state court and before administrative agencies; know how administrative agencies are formed and where they get their authority; understand what powers are reserved by the states and how states build and operate airports. I n t r o d uct i o n On September 3, 1783, Benjamin Franklin signed the Treaty of Paris, officially ending the American Revolution. At the same moment, in the same city, Joseph and Etienne Montgolfier were making preparations to launch humanity headlong into the age of aviation. Years earlier, Joseph had noticed that clothes drying over a fire would billow upwards. Unaware that it was the heat that caused this reaction, Joseph assumed that fire produced a gas that was lighter than air. He hypothesized that he could capture that gas in a balloon and ascend into the sky. On September 19, 1783 – just over two weeks after the signing of the Treaty of Paris – the Montgolfier brothers launched a hot air balloon into the skies of Paris. Afraid of what flying might do to the human body, the brothers tested their contraption with a sheep, a duck and a rooster. Later that year, they conducted the first manned flight in human history when they sent two human passengers into the sky. Benjamin Franklin witnessed the event and excitedly wrote a letter describing it: F o u n d at i o n s o f Av i at i o n L aw 20 The sky was cloudy in some areas but clear in others. The wind was blowing from the northwest. At eight minutes past twelve, a box was pulled to signal that air was beginning to be pumped into the aerostat. This operation was completed in 8 minutes despite the wind, and the machine was ready to take off … We observed it lift off in the most majestic manner. When it reached around 250 feet in altitude, the intrepid voyagers lowered their hats to salute the spectators. We could not help feeling a certain mixture of awe and admiration. From its very inception, the fate of the US has been closely intertwined with the history of aviation. The airplane has been an integral fixture in American history, because of the country's great expanse and the need to cross oceans to reach other continents. For that reason, America has often been a world leader in developing not only the science of aviation, but also the laws and regulations that are necessary to safely manage the nearly 100,000 flights that operate in US airspace every day. In this chapter, you will learn about the overall framework of the American legal system and some of the many ways in which law and aviation intersect. F e d e r a l L aw The Drafting of the US Constitution In the midst of the American Revolution, the Second Continental Congress took up the monumental task of drafting the country's first constitution. The result was the Articles of Confederation, which were adopted by Congress in 1777. Even at that early date, Americans recognized the importance of travel and commerce to the future of the nation. To that end, the Articles specifically guaranteed the right of American citizens (with the exception of "paupers, vagabonds and fugitives") to move freely amongst the states and engage in trade. The Articles created a weak national government that had few powers and responsibilities. Its judicial branch could only hear admiralty cases and it had no executive branch. Under the Articles, Congress was tasked with providing for a national defense, negotiating treaties, and resolving disputes between the states. The individual states retained sovereignty and a great deal of autonomy from the federal government. In practice, this left the Continental Congress with the power to request actions from the individual states, but not the power to compel them. As a result, the states often ignored Congress' request for troops, provisions, and funds to support the ongoing war for independence. This created substantial difficulties for General George Washington, the commander of the Continental Army. The Articles also proved to be ineffective at promoting commerce. The states' general refusal to contribute funds to the national government upon request left the nation without the necessary capital to raise an adequate navy. Consequently, US merchant vessels were particularly susceptible to piracy and impressment. The nation's economic woes were further exacerbated by the fact that the national government had no power to tax or regulate commerce. Those powers were instead reserved by the individual states. In practice, this created substantial barriers to trade because of conflicting laws, protectionist import taxes, and other trade barriers set up in the various states. In 1786, delegates met to discuss ways of strengthening the nation's trade. James Madison attended as a delegate of Virginia. He called for "vesting in Congress the necessary powers to regulate trade, then suffering under the monopolizing power abroad, and State collisions at home." The delegates issued a recommendation to Congress, chapter 2 • The US Legal System 21 entitled Proceedings of Commissioners to Remedy Defects of the Federal Government. In it, they requested that the federal government amend the Articles. In response, Congress scheduled a constitutional convention for the following year. In May 1787, delegates met in Philadelphia to amend the Articles of Confederation. Many of them, including James Madison, Alexander Hamilton, and George Washington, arrived with the intention of doing away with the Articles altogether and drafting an entirely new form of government. By June, it became apparent that the Articles were doomed, and the convention began working on a new constitution. All the plans proposed at the Constitutional Convention featured stronger federal power over commerce and trade, but debates arose as to the apportionment of power between the states and the federal government. Alexander Hamilton proposed a plan that would eliminate state sovereignty altogether and unify the nation under a single national government. Delegates rejected the plan because they feared relinquishing state autonomy to the federal government. James Madison proposed the Virginia Plan, which divided power between the states and the federal government. The plan called for a bicameral legislature in which the number of representatives in both houses would be based on state population. Delegates from the larger states favored this plan because it provided them with substantial power over the federal legislature. In response, the smaller states proposed their own draft, called the New Jersey Plan. Under this model, each state would be allowed only one representative in the federal legislature. The delegates eventually agreed to a compromise solution that merged the best elements of the Virginia and New Jersey plans. The final draft kept Madison's bicameral legislature and divided Congress into a House of Representatives and a Senate. Seats in the House of Representatives would be apportioned by state population and seats in the Senate would be fixed at two per state. The final draft was submitted to Congress and circulated for ratification by the individual states. On March 4, 1789, the new federal government began operating under the auspices of the Constitution. In less than two decades, the nation had transformed from a British colony to a loose confederacy of independent states, and into a republic of sovereign entities organized under a strong national government. The framers could hardly have imagined that in just a few generations, the US would undergo dramatic change once again, as its frontiers would be expanded by the birth of modern aviation. Yet, the Constitution was designed to provide a mere framework for how the government should operate. This makes the US legal system uniquely adaptive to changes in science, technology, and culture. While the framers could not have anticipated the rise of aviation, they designed an ingenious political system that has proven flexible enough to embrace aviation technology and adapt it to suit our modern needs. The Federal Judiciary The US Supreme Court sits at the apex of a three-tiered federal court system. It may come as a surprise that the Supreme Court is actually the only court established by the Constitution. All other federal courts are created by statute. The President appoints federal judges subject to the consent of the Senate, and those judges serve until resignation, death, or impeachment.1 1 There are some minor exceptions to this rule. Federal judges in the territorial District Courts serve for fixed terms, as do bankruptcy court judges and certain other judges in courts of limited jurisdiction. F o u n d at i o n s o f Av i at i o n L aw Figure 2.1 Circuit Court of Appeals 13 Circuits 94 Districts District Court United States Supreme Court 9 Judges 22 The three levels of the federal court system Congress determines the federal courts' structure, jurisdiction and number of judicial appointments. It can even abolish the lower federal courts, as it did in 1982, when it eliminated the Court of Claims and Court of Customs and Patent Appeals. Generally speaking, there are three levels to the federal court system: a trial level, an intermediate appellate level, and a final appellate level. The District Court is the trial level of the federal system. There are 94 districts throughout the US and its territories (Guam, the Virgin Islands, Puerto Rico and the Mariana Islands). For a case to be brought in federal court, the plaintiff must establish both subject matter jurisdiction and personal jurisdiction. The subject matter jurisdiction of the District Courts is fairly limited. The four primary types of cases that can be heard in the District Court are: (1) cases that arise under federal law; (2) cases in which the US is a plaintiff or defendant; (3) cases involving diversity of citizenship;2 and (4) appeals from certain types of administrative agency decisions. In addition to having jurisdiction over the type of case, the court must also have jurisdiction over the defendant. Personal jurisdiction over a defendant can be established in any state where the defendant resides, is personally served with the lawsuit, or has certain "minimum contacts." The third category of personal jurisdiction was established by the Supreme Court in the case of International Shoe v. Washington, 326 U.S. 310 (1945). There, Washington State sued a Missouri shoe company for non-payment of state taxes. The Missouri company had no offices in Washington, but it did employ a small number of traveling salesman there. The company argued that it was not subject to the jurisdiction of the Washington courts. The Supreme Court disagreed and held that a court may exercise jurisdiction over any individual who has "sufficient minimum contacts" with the forum state, regardless of whether the individual resides in the forum or was served in the forum. Doing business in a state is generally sufficient to establish jurisdiction, especially if the claim arises from those business transactions. Once jurisdiction is established, a lawsuit's progress through the District Court is controlled to a large extent by the rules of procedure. Federal courts have a set of civil 2 Diversity of citizenship occurs when the lawsuit is between citizens of different states, and the amount in controversy exceeds $75,000. chapter 2 • The US Legal System 23 rules as well as a set of criminal rules. The rules of procedure govern how a lawsuit is filed and how it progresses toward trial. Generally speaking, a lawsuit begins with the filing of a complaint. Once served, the defendant must then respond by way of an answer or a motion to dismiss. A motion to dismiss may challenge the court's jurisdiction or may attack the legal basis of the complaint. Once a lawsuit has been answered, it proceeds into the discovery phase. During discovery, each party is entitled to conduct depositions of parties and witnesses, demand that certain documents be turned over, and request answers to requests for admission and interrogatories. The discovery phase is generally the most time-consuming and costly phase of a civil lawsuit, and it is not unheard of for discovery to take anywhere from months to years. For example, litigation that resulted from the 1996 crash of TWA Flight 800 was still ongoing as late as 2004. Criminal cases generally proceed much faster, since the constitution guarantees defendants' right to a speedy trial. Once discovery is complete, the parties and the court set a trial date. At trial, the rules of evidence govern how the trial is presented to the jury and what things the jury is permitted to consider. At any time during the civil legal process, the parties could negotiate a settlement or the court could grant dismissal or summary judgment. Once the District Court has rendered a final decision, the order may be appealed to the Circuit Court, which is the intermediate court of appeal in the federal system. A petitioner does not get a "do-over" in the Circuit Court, because the appellate court does not conduct any new fact-finding. Instead, it reviews the record to determine whether any errors of fact or law were made during the original proceedings. Significant deference is given to the District Courts' factual findings, so those findings will not be countermanded by the Circuit Courts unless they are clearly erroneous. No such weight is given to the District Courts' legal conclusions, which are reviewed de novo – without any deference whatsoever. There are 13 Circuit Courts, 12 of which have geographic jurisdiction over specific states and territories. For example, the Ninth Circuit Court of Appeals hears appeals from District Courts located in Washington, Oregon, California, Montana, Idaho, Nevada, Arizona, Alaska, Hawaii, Guam, and the Mariana Islands. The Federal Circuit is somewhat unique in that its jurisdiction is defined by the subject matter of the lawsuit instead of a geographic boundary. The Federal Circuit hears appeals in patent cases and certain administrative cases, among a handful of other subjects. The Supreme Court is the court of last resort in both the federal and state judicial systems. Circuit Court rulings can be appealed to the Supreme Court by filing a writ of certiorari. The court's appellate jurisdiction is discretionary, meaning it is not required to hear each of the nearly 10,000 appeals it receives every year. To do otherwise would be physically impossible, as there are only nine justices on the Supreme Court. At least four of them must agree to hear a writ, otherwise the appeal will be rejected and the decision of the lower court will be final. The nine justices of the Supreme Court are highly selective about which cases they will hear, and they choose cases that involve legal questions with wide-ranging implications. The Supreme Court can also exercise original jurisdiction over cases involving ambassadors and other diplomats, as well as cases in which a state is a party. The Supreme Court's rulings are final and its justices are appointed for life. Yet, its power is not absolute. Its rulings can, in many cases, be undermined by the passage of new statutes. For example, the Supreme Court ruled that the death penalty was unconstitutionally cruel and unusual in the 1976 case of Furman v. Georgia, 408 U.S. 238. The federal and state governments rushed to amend their death penalty statutes, 24 F o u n d at i o n s o f Av i at i o n L aw and the court was forced to reinstate the death penalty four years later. The court's power is also checked by the fact that the Senate holds the power to impeach federal judges and designate the number of judicial appointments. Congress threatened to use that latter power during Franklin Roosevelt's presidency after the Supreme Court's four conservative justices – mockingly referred to as the "Four Horsemen" in the press – struck down several provisions of the New Deal (e.g. Case 2.5). The New Deal was a series of laws passed by Congress in an effort to ameliorate the effects of the Great Depression. When the Supreme Court blocked many of these statutes, Congress threatened to pass an act that would increase the number of judges on the court. This, in turn, would have allowed President Roosevelt to pack the court with judges more amenable to the New Deal, effectively creating a powerful liberal majority on the court. In the face of that threat, the Supreme Court reversed course and upheld a New Deal minimum wage statute in the case of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). One of the Four Horsemen, Justice William Van Devanter, retired shortly thereafter and the court-packing scheme lost momentum. It is important to bear in mind that the federal courts have limited jurisdiction. The federal courts may hear cases in which the US is a party. Federal jurisdiction is also proper if the parties are citizens of different states and the amount in controversy is greater than $75,000. If the parties do not fall within either of those classifications, federal jurisdiction may still be proper if the case arises from federal law – for example, a federal criminal prosecution or a bankruptcy – or if it is an appeal from a federal agency's decision. With certain limited exceptions, all other cases must be filed in state court. Separation of Powers under the US Constitution The Constitution was designed to accommodate several competing interests: the need for a strong federal government, the need to maintain the sovereignty of the individual states, and the desire to protect personal freedoms. In order to accommodate those interests, the Constitution is designed to spread political power both vertically and horizontally. The term vertical separation of powers refers to the division of power between the federal government, the states, and the people. Horizontal separation of powers refers to the apportionment of power between the three branches of government: legislative, executive, and judicial. In that regard, the Constitution's drafters were heavily influenced by the writings of the French political philosopher Montesquieu, who wrote: "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty." Under the US Constitution, horizontal separation of power is achieved by a system of checks and balances, in which each branch of government can limit the powers of the other branches. Article I of the Constitution specifies the powers that belong to the legislative branch. Article II specifies the powers belonging to the executive, and Article III sets forth those that belong to the judiciary. The drafters created a system of vertical separation by dividing power between Congress, state governments, and the people. They did so by enumerating the powers Congress could exercise and by emphasizing that all unmentioned powers were "reserved to the States respectively, or to the people." The power of the people is protected by the Bill of Rights, which was adopted shortly after the Constitution was ratified. chapter 2 • The US Legal System 25 The Supremacy Clause and the Doctrine of Preemption The balance of federal and state power is often implicated when states attempt to regulate matters related to aviation. The Supremacy Clause (Article VI, section 1) establishes the Constitution, federal laws, and national treaties as "the supreme Law of the Land." As a result, the vertical separation of powers can be viewed as a hierarchy in which state law is generally subordinate to federal law. The preemption doctrine explains that federal law is superior to state law under certain circumstances. The first and most easily identifiable circumstance occurs when a state law directly conflicts with a federal law. The following case illustrates this doctrine of conflict preemption. Case 2.1 American Airlines, Inc. v. City of Audubon Park, 297 F.Supp. 207 (1968) Kentucky District Court FACTS: Standiford Field Airport1 was located to the south of the City of Audobon Park, Kentucky. All aircraft landing on Runway 19 were required to pass directly over the City of Audubon. In 1967, the city passed an ordinance declaring it unlawful for any person, agency, corporation, or business entity to operate an aircraft over the city at a height of less than 750 feet. Congress had previously passed a statute giving the FAA the authority to promulgate its own regulations concerning aircraft navigation. Under that authority, the FAA passed a series of regulations specifying the manner in which pilots may approach a runway for landing. One of those regulations required pilots to following a specific glide path when descending for landing. At Standiford Field, pilots used a visual glide path that directed them to the runway at a three-degree angle of descent. Aircraft following the path would enter the airspace over the city at a height of 442 feet, descend to a height of 282 feet, and then continue the descent to Runway 19 for landing. American Airlines filed suit, asking the Kentucky District Court to declare the city ordinance unlawful. The airline argued that the city's ordinance conflicted with federal law and that it would be physically impossible to obey both the FAA regulation and the city ordinance. The airline also presented evidence to the District Court demonstrating that the city's ordinance would require pilots to descend too quickly after departing the city's airspace, and that this would create an unsafe method of landing. ISSUE: Can a city pass an ordinance that directly conflicts with a valid federal regulation? HOLDING: No, state and local governments cannot pass laws that directly conflict with federal regulations. The FAA regulation was a legitimate exercise of the government's commerce power because air travel is inarguably a matter of interstate commerce. Congress acted within its commerce power when it passed a statute authorizing the FAA to promulgate various regulations dealing with air travel. Consequently, the Supremacy Clause mandates that the FAA's regulations are "the supreme Law of the Land," and a state or local government is compelled to follow them and to refrain from enacting conflicting ordinances. 1 Standiford Field has since been expanded and renamed Louisville International Airport. F o u n d at i o n s o f Av i at i o n L aw 26 Preemption may occur even if a state law does not directly conflict with federal regulations. Express preemption occurs if Congress directly proclaims that states may not pass laws regulating a certain matter. For example, the Airline Deregulation Act and the Federal Aviation Administration Authorization Act each expressly prohibit states from enforcing any law regarding the prices, routes, or "services" of an air carrier.3 Courts have generally interpreted the term "services" very broadly, in order to preempt a wide range of state attempts to regulate the aviation industry. For example, in Morales v. Trans World Alliances, Inc., 504 U.S. 374 (1992), the Supreme Court concluded that state efforts to regulate airlines' advertising was preempted because federal law prohibits states from passing any law "related to a price, route or service." In Rowe v. New Hampshire Motor Transport Association, 552 U.S. 356 (2008), the Supreme Court struck down a state law requiring tobacco shippers to verify the age of all recipients of tobacco shipments, because the state law would have required air carriers to adopt new procedures regarding their "services." In Air Transport Association of America, Inc. v. Cuomo, 520 F.3d 218 (2nd Cir. 2008), the Second Circuit Court of Appeals invalidated the New York Passenger Bill of Rights. The law was passed in response to a series of high-profile incidents in which passengers were kept onboard airplanes during lengthy delays without access to food, water, or restrooms. It required airlines to provide fresh air, lighting, waste removal, and drinking water to passengers who had been delayed onboard the aircraft for more than three hours. Again, the law was deemed preempted because it sought to regulate airlines' "services." Even if a state law does not directly conflict with federal regulations and does not run afoul of an express statement by Congress, the preemption doctrine may still apply. Under the doctrine of field preemption, a state law will be preempted if federal law is so pervasive that it leaves no room for state interference, provided that Congress has demonstrated a clear intent to supersede state laws in that field. Below, we will look at two cases from the same Court that resulted in different holdings in response to airline companies' field preemption arguments. Case 2.2 Abdullah v. American Airlines, Inc., 181 F.3d 363 (1999) Third Circuit Court of Appeals FACTS: During a flight from New York to Puerto Rico, the flight crew observed a storm approaching. The crew did not attempt to avoid the storm and did not warn the passengers of the approaching weather system. The pilot did, however, illuminate the seatbelt sign. As the aircraft flew through the storm, it encountered severe turbulence. Some passengers were thrown from their seats and injured. They later filed a lawsuit against the airline, alleging common law claims of negligence. The airline argued that federal law preempted the negligence claim because the FAA regulations state that: "No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." In essence, the airline argued that the passengers should be required to meet the higher burden of proof of recklessness. 3 49 U.S.C. §§41717(b)(1) ("a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier"); 49 U.S.C. §§14501(c)(1). chapter 2 • The US Legal System 27 ISSUE: Does the FAA prohibition against careless or reckless flight operations preempt state law tort claims based on mere negligence? HOLDING: The Court held that the FAA regulations are so intricate and pervasive that they leave no room for state interference. For that reason, the Court determined that the standard of carelessness or recklessness was the standard to be applied in this case. In reaching that conclusion, the Court looked to the history of the FAA and determined that Congress had intended to pass comprehensive aviation safety rules in order to provide for a single, uniform system of laws regarding aviation safety. To allow state law claims of negligence to proceed would undermine the uniformity of the federal aviation rules. Case 2.3 Elassaad v. Independence Air, Inc., 613 F.3d 119 (2010) Third Circuit Court of Appeals FACTS: Joseph Elassaad was a passenger aboard a Dornier 328, a small commuter jet. The jet had a 3½-foot long flight of steps built into the door, with a handrail on only one side. Mr Elassaad's right leg had been amputated above the knee 26 years earlier and he used crutches to walk. As he descended the steps, he lost his balance and fell to the tarmac, suffering torn cartilage in his shoulder. Shortly thereafter, he brought suit against the airline, alleging that the aircraft was improperly designed, that the airline had failed to maintain a safe means of exiting the aircraft, and that it had been negligent in not offering him any help with exiting the plane. The airline argued that, under the Third Circuit's previous decision in Abdullah, state law claims of negligence are preempted by federal standards. The airline asserted that it was not liable for Mr Elassaad's injuries because the federal Air Carriers Access Act only requires air carriers to offer assistance to the disabled if requested. Mr Elassaad admitted that he had never requested any help from the flight attendant before disembarking from the plane. ISSUES: (1) Does Abdullah apply in this case? (2) If not, does the Air Carriers Act preempt state law negligence claims for injuries that occur during debarkation? HOLDING: As to the first issue, the Third Circuit concluded that Abdullah did not apply in this case because it had involved injuries that happened during a flight. Mr Elassaad, on the other hand, was injured while the plane was stopped on the tarmac. The Court explained: In Abdullah, we found that there was implied field preemption of the entire field of aviation safety as a result of the Aviation Act and its implementing regulations. However, our analysis of field preemption in Abdullah – specifically, the field of aviation safety – was in the context of in-flight safety. This is clear from a careful reading of our decision. In describing our conclusion regarding preemption, we stated that "federal law establishes the applicable standards of care in the field of air safety," and that the FAA has "sole discretion in regulating air safety." As examples of what we meant by the term "air safety," we noted that a goal of the Aviation Act was to reduce "accidents F o u n d at i o n s o f Av i at i o n L aw 28 in air transportation," we referred to the FAA's regulation of "pilot certification, pilot pre-flight duties, pilot flight responsibilities, and flight rules," and we described case law regarding issues "such as airspace management, flight operations, and aviation noise" … Our discussion of the regulatory framework giving rise to preemption in Abdullah focused exclusively on safety while a plane is in the air, flying between its origin and destination. Our use of the term "aviation safety" in Abdullah to describe the field preempted by federal law was thus limited to in-air safety. The supervision of the disembarkation process by a flight crew therefore falls outside the bounds of what we were considering in Abdullah. As to the second issue, the Third Circuit held that the Air Carriers Act did not preempt state law negligence claims for injuries that occur while a plane is not in flight. The Court reviewed the Air Carriers Act and reasoned that it only sought to regulate in-flight safety. It concluded that Congress did not intend for the Act to apply to situations in which an aircraft is on the tarmac. To summarize, federal law will preempt state law under three circumstances. Conflict preemption occurs when federal and state law directly contradict one another. Express preemption occurs when Congress has explicitly stated its intent to supersede state law in a given area. Field preemption occurs if the matter at issue is so heavily regulated by the federal government that it can reasonably be inferred that Congress intended to preempt state law. The Commerce Clause The Commerce Clause is contained in Article I, section 8. It gives Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." In Gibbons v. Ogden, 22 U.S. 1 (1824), Chief Justice Marshall explained that "commerce" is not merely the sale or transport of goods; instead, the word includes all aspects of commercial exchanges, including two that have a direct relation to aviation law – traffic and navigation. Over time, the courts have identified four broad categories that are subject to federal regulation under the commerce clause: (1) the channels of interstate commerce, such as waterways and airspace; (2) the instrumentalities of interstate commerce, such as cars, trains, and airplanes; (3) passenger safety and the safety of items involved in interstate commerce; and (4) activities that have a substantial relation to or effect on interstate commerce. In the context of aviation law, courts generally uphold the federal government's efforts to regulate even intrastate air travel because all four categories of commerce apply: the nation's airspace is a channel of commerce; aircraft are instrumentalities of commerce; individuals, aircraft and cargo involved in air commerce must be protected from unsafe local conditions; and purely local aviation operations have a substantial relation to and effect on interstate air travel. The ability of the federal government to regulate purely local activity under the power of the commerce clause is illustrated in the following case. chapter 2 • The US Legal System Case 2.4 29 Ickes v. Federal Aviation Administration, 299 F.3d 260 (2002) Third Circuit Court of Appeals FACTS: Don Ickes owned 38 acres in Osterburg, Pennsylvania that he called "Ickes Airport." Despite only having a student's license, he owned and regularly flew a Challenger II, a twoseat light-sport aircraft.1 His Challenger II did not comply with FAA regulations and he had previously been cited for piloting it without a proper airman certificate – the document issued by the FAA authorizing an individual to pilot an aircraft. The FAA eventually learned that Ickes intended to host an air show at his property. The agency immediately issued an Emergency Order preventing Ickes from operating any aircraft at the show and further requiring him to cease flying his Challenger II until he could obtain an airman's certificate and bring his aircraft into compliance with FAA standards. Ickes appealed the Emergency Order, arguing that the commerce clause did not give the federal government authority to regulate his aircraft since it never crossed state lines and was not engaged in any type of commercial operation. ISSUE: Can the FAA regulate individuals and aircraft that are involved only in intrastate flights? HOLDING: "It is beyond dispute that Congress' power over interstate commerce includes the power to regulate use of the nation's navigable airspace, which is a channel of interstate commerce. In addition, because airplanes constitute instrumentalities of interstate commerce, any threat to them, such as the one posed by Ickes' flights of his Challenger II, is properly subjected to regulation even if the threat comes from a purely intrastate activity. Ickes' constitutional challenge, therefore, is without merit." 1 Under the FAA's regulations, a light-sport aircraft is any plane that weighs less than 1,320 lbs and has a maximum level-flight airspeed of 120 knots or less. As illustrated above, the commerce clause gives Congress broad power to regulate not only interstate commerce but also intrastate commerce. Between 1937 and 1994, the Supreme Court placed almost no restrictions on Congress' commerce power. As a result, the commerce clause has been used as the basis for numerous federal statutes that bear only a questionable relationship to commerce. Yet, the commerce clause is not without its limitations. Since 1995, the Supreme Court has been more leery about approving federal legislation under the commerce clause. For example, in US v. Lopez, 514 U.S. 549 (1995), the Supreme Court refused to uphold the Gun-Free School Zone Act on commerce grounds. The law prohibited unauthorized individuals from bringing a firearm within 1,000 feet of a school. The federal government had argued that the law was constitutional because gun violence affects interstate commerce. The Court found the argument unpersuasive and reasoned that any effect gun violence might have on interstate commerce was too attenuated to justify the law. In another gun-related case, Printz v. US, 521 U.S. 898 (1997), the Court invalidated a provision of the Brady Handgun Violence Prevention Act that 30 F o u n d at i o n s o f Av i at i o n L aw required state police agencies to regulate firearm sales. The Court determined that the law improperly sought to commandeer state resources to pay for a federal program. The commerce power is indisputably broad, but as recent cases have shown, it does have its limits. The Supreme Court has recently shown less willingness to rubberstamp federal legislation simply because of some tangential connection to commerce. The Supreme Court has also rejected federal efforts to effectively commandeer state resources under the guise of the commerce clause. Despite these small limitations, the commerce power remains extremely broad in the context of aviation because air travel implicates all four categories of interstate commerce: the nation's airspace is indisputably a channel of commerce; aircraft are instrumentalities of commerce; the safety of passengers and cargo must be ensured; and intrastate air travel has a substantial relation to and effect on interstate commerce. A d m i n i st r a t i v e L a w Delegation of Federal Power to Government Agencies Government agencies appear very much like miniature governments unto themselves. Agencies exercise quasi-legislative power by developing their own rules and regulations. They enforce their rules through investigation and prosecution, much like the executive branch, and agencies hear and decide cases involving violations of their rules, like the judicial branch. An agency is formed by the passage of an enabling act that designates the agency's name, purpose, and jurisdiction. Agencies are formed to address specific matters that would be too complex or time-consuming for the legislature to oversee directly. One of the first government agencies was established to administer pensions to soldiers wounded during the American Revolution. The number of administrative agencies has drastically increased in the past century. Today, Americans' lives are regulated by hundreds of federal and state agencies, some of whose names should be well known to you: the Federal Bureau of Investigation, the Food and Drug Administration, the Internal Revenue Service, the Securities and Exchange Commission, and the Social Security Administration are just a few examples. Congress generally creates these agencies in response to a perceived public need. A fairly recent example is the Department of Homeland Security, which was founded a year after the terrorist attack against the World Trade Center in New York City. It may come as a surprise that the power to create administrative agencies is not expressly stated anywhere in the Constitution. In fact, the plain language of Article I, Section 1 states that all legislative powers are to be "vested in a Congress of the United States." How is it then that Congress may delegate its powers to administrative agencies? The answer lies in the necessary-and-proper clause of the Constitution, which provides Congress with the power to "make all Laws which shall be necessary and proper for carrying into Execution" its enumerated powers, as well as "all other Powers vested by this Constitution in the Government of the U.S., or in any Department or Officer thereof." In McCulloch v. Maryland, the Supreme Court held that the necessary and proper clause of the Constitution provided Congress with broad implied powers, including the power to establishing a national bank. That same legal principle applies when Congress uses its power to establish federal agencies to oversee specific matters of public concern. chapter 2 • The US Legal System 31 Although some critics derogatorily refer to the administrative system as a fourth branch of government, Congress' power to create government agencies is not subject to serious dispute. This isn't to say that Congress can simply transfer its legislative duties to other entities. When delegating its rule-making power, Congress must provide an "intelligible principle" to guide the agency in the execution of its duties. In order to meet that standard, the courts generally require Congress to clearly define the agency's purpose, policy, and authority. Although not directly related to aviation, the next case illustrates what happens when Congress delegates power, but does not clearly define the boundaries of that power. Case 2.5 A.L.A. Schechter Poultry Corp. v. US, 295 U.S. 495 (1935) US Supreme Court FACTS: Congress passed the National Industrial Recovery Act in 1933 as part of the New Deal. The Act gave the President power to establish regulations to promote "fair competition." Pursuant to that power, President Roosevelt approved a "Live Poultry Code" in 1934. Among other things, the Code established a minimum wage for employees in the poultry industry and prohibited the butchering and selling of sick chickens. Schechter Poultry operated several slaughterhouses in New York City and was cited for 60 violations of