Congress may enact legislation that requires state courts to submit the determination of the amount of punitive damage awards in products liability cases to judges rather than juries if it also enacts federal law supplying the substantive law to be applied in such cases.
Legislation that does not enact a substantive law of products liability, but simply attempts to prescribe directly the state court procedures to be followed in products liability cases arising under state law raises significant Tenth Amendment questions. Given the current state of Tenth Amendment junsprudence, however, it is unlikely that a court would invalidate such a statute.
In deciding whether to propose legislation that would impose procedural requirements on state court proceedings, the Department should give due consideration to the federalism concerns that would be raised, as required by section 5(a) of Executive Order No. 12612.