September 18, 2012 The Airline Double Standard: a story of preemption
Let me start off this post with a brief and very simple introduction to Law in the United States. The U.S. uses a common law system inherited from England. A common law system is where the governmental body writes broad laws and the courts interpret these laws and apply them to specific situations. Where the laws are too broad or there are no laws at all the judges apply the Common Law. For example, in U.S. if you were in a car accident the common law tort of negligence would apply. The government can change or “preempt” common law. What this means is the law that has developed through the courts can be altered by laws passed by the government. Airlines in the U.S. have a love hate relationship with this concept and this post is to explain why that is so. First, let’s look at the history of commercial aviation in the United States.
U.S. aviation started out as one of the more heavily regulated industries in the United States. Airlines while existing as independent companies did not control the fares the charged, the routes they offered, and may other aspects of their operations. The U.S. government thought (incorrectly) that if airlines were left to their own devices they would put air travel out of the range of normal people. Then in the 1970’s, the U.S. government started to step back from regulating airline operations with the Airline Deregulation Act (ADA). Now theoretically that there is less “law” that directly pertains to the airlines and the common law system in the U.S. will fill in the gaps that the ADA created. People will sue the airlines, court decisions will be made, and aviation law will be filled out. The problem lies in one small fact.
Airlines don’t like to be sued. (Shocking, I know)
Airlines today operate on this double standard. The CEO note from United Airline’s July inflight magazine, made the argument against government regulation of airlines. This makes some sense, why should the government be able to tell any airline how to run its business. Even while making the argument that less regulation is best, airlines actively seek the protection of these regulations. Look at any major lawsuit against an airline and you’ll see the same argument “Plaintiff’s cause of action is preempted by the Airline Deregulation Act.” Here, the airline is making the argument that because the government has made the choice to regulate the airlines, it falls to the government to enforce the regulations and that individuals cannot seek redress in a court. This argument is in line with the preemption doctrine, if the government choses to do it, the people can’t. Airlines like this argument because the U.S. government will almost never go after an airline for a specific act. So, if the court accepts this argument then the case is for all intents a purposes is over.
The contradiction here is clear; airlines want to hide behind the shield that the regulations provide without having any regulations at all. There is no clearer case of having one’s cake and eating it to. Courts have started to see this and are less willing to dismiss cases that clearly fall within the bounds of state common law. The case in California where a man sued for being kicked out of Northwest’s frequent flyer program comes to mind. That being said, with each call for regulation from the general public, the airlines increase their ability to shield their bad behavior from liability using those regulations. If we the traveling public want regulation that is fine, but we should be aware that when something happens to an individual the airlines will use those same regulations to disclaim liability for their actions.
Whichever way the U.S. Law ends up, one thing is clear, Airlines have a love hate relationship with regulation. It takes a savvy eye to see when the airline is lying to individuals, press, and the government about regulations. Just remember that airlines love having their cake and eating it too.
Go forth and conquer,