Under the Federal Employers’ Liability Act (“FELA”), lawyers win and everyone else loses. Essentially, FELA fails on two accounts: time and money. FELA is the exclusive remedy for claims by railroad employees against employers for injuries suffered on the job; it supersedes all state laws. While one study showed that almost 99% of FELA cases are settled and 85% are settled without the help of an attorney, if not settled, FELA cases take an average of five-and-a-half years to be resolved. Moreover, when Congress reviewed FELA in 1988 for possible repeal, the administrator of the Federal Railroad Administration testified that almost a quarter of all employees who went to trial with claims of $500,000 or more actually received no compensation. Of those employees who did receive a judgment, between 25 and 31% of their judgments went to attorney’s fees.
Because of these shortcomings, many scholars and politicians have been calling for reform or repeal of FELA practically since its inception. However, proponents of FELA argue that the criticisms are unfounded. Proponents claim that because FELA is based on the tort liability system, it provides a deterrent effect. Additionally, FELA is less expensive than workers’ compensation schemes, and compensation under FELA is more individualized. Despite this debate and the constant critiques of FELA, Congress has failed to reform FELA in the over 100 years it has been law or even address the two main problems with FELA: time and money.
This article discusses how shortcomings of FELA—the enormous costs to both sides and the great amount of time that claims take to be resolved—cause FELA’s failure to serve the interests of both the injured employees seeking compensation and the railroads that employ them.