Journal of Air Law and Commerce


The Airline Deregulation Act of 1978 (ADA) deregulated the domestic airline industry. Specifically, the ADA ended the dual administrative system, which allowed the states to regulate intrastate airfare and permitted the federal government’s Civil Aeronautics Board (CAB) to regulate interstate airfare. The Act also included a broad preemption clause to prevent the states from reimposing economic regulations on air travel. The preemption clause prohibits a “State . . . [from] enact[ing] or enforc[ing] any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier.”

The Supreme Court has interpreted the scope of the ADA’s preemption clause expansively and concluded that only state law claims with a “tenuous, remote, or peripheral” relationship to an airline’s services survive preemption. Yet, the Supreme Court has never defined the key word: Service. Today, federal circuit courts disagree on the definition of “service,” and a majority have adopted the Fifth Circuit’s definition articulated in Hodges v. Delta Airlines, Inc.

Applying the Supreme Court’s expansive view of the ADA’s preemption clause, the Fifth Circuit defined the term “service” as all bargained-for air carrier services, including “ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself.” The Fifth Circuit’s definition preempts almost all conceivable state law claims despite the Supreme Court excepting claims with a “tenuous, remote, or peripheral” relationship to an airline’s services from preemption. Consequently, the aviation industry largely evades state law.

This Comment argues that courts should interpret the ADA’s preemption clause more narrowly to allow more state law claims to survive preemption, particularly claims arising from an airline’s mishandling, delaying, or misplacing of a loved one’s remains. As the COVID-19 pandemic claims lives and frustrates air travel, a perfect storm threatens to mishandle, delay, or misplace a loved one’s remains. Grieving mothers, fathers, husbands, and wives are left without a legal remedy because the ADA shields the airline industry from liability concerning “baggage handling” and the “transportation itself.” Courts should interpret the ADA’s preemption clause more narrowly based on the ADA’s clear purpose, the plain meaning of the ADA’s text, stare decisis, and the law’s treatment of other entities that mishandle human remains.



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