Congressional Power to Abolish Common Law Judicial Actions.

Similarly, it is clearly settled that “[a] person has no prop-erty, no vested interest, in any rule of the common law.”590 It follows, therefore, that Congress in its discretion may abolish common-law actions, replacing them with other judicial actions or with administrative remedies at its discretion. There is slight intimation in some of the cases that if Congress does abolish a common law action it must either duplicate the recovery or provide a reasonable substitute remedy.591 Such a holding seems only remotely likely,592 but some difficulties may be experienced with respect to legislation that retrospectively affects rights to sue, such as shortening or lengthening statutes of limitation, and the like, although these have typically arisen in state contexts. In one decision, the Court sustained an award of additional compensation under the Longshoremen’s and Harbor Workers’ Compensation Act, made pursuant to a private act of Congress passed after expiration of the period for review of the original award, directing the Commission to review the case and issue a new order, the challenge being made by the employer and insurer.593

Footnotes

590
Second Employers’’ Liability Cases, 223 U.S. 1, 50 (1912). See also Silver v. Silver, 280 U.S. 117, 122 (1929) (a state case). back
591
The intimation stems from New York Cent. R.R. v. White, 243 U.S. 188 (1917) (a state case, involving the constitutionality of a workmen’s compensation law). While denying any person’s vested interest in the continuation of any particular right to sue, id. at 198, the Court did seem twice to suggest that abolition without a reasonable substitute would raise due process problems. Id. at 201. In Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 87–92 (1978), it noticed the contention but passed it by because the law at issue was a reasonable substitute. back
592
It is more likely with respect to congressional provision of a statutory substitute for a cause of action arising directly out of a constitutional guarantee. E.g., Carlson v. Green, 446 U.S. 14, 18–23 (1980). back
593
Paramino Co. v. Marshall, 309 U.S. 370 (1940). back