Howell Heflin

Mr. HEFLIN

Mr. HEFLIN. Madam President, I ask unanimous consent that this amendment be laid aside until later.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, we were greatly saddened on May 24 by the death of W.W. Weatherford. At 81 years of age, ``Son,'' as he was widely know, had lived a life in which he devoted much of his time and energy to his local community. Son Weatherford served others just by carrying out the activities of his day-to-day life. He ran the family business--the Weatherford Store, in Vina, AL, and was a member of the First Baptist Church of Russellville, serving as both a deacon and a Sunday School teacher. Son improved his community through the offices he held and the organizations to which he belonged. He was probate judge for Franklin County, eventually becoming president of the Alabama Probate Judges Association. He was the chairman of the Franklin County, Commission, president of the Alabama Association of County Commissioners, and served as State director of the State Mental Health Board. He fought for his country in World War II and became a member of the American Veterans Association and the Red Bay American Legion. Son was also a Mason and a charter member of the Bear Creek Watershed Association. He was president of the Russellville Chamber of Commerce and was once recognized by that community as its Outstanding Citizen of the Year. W.W. ``Son'' Weatherford will be sorely missed by the people of the town to which he devoted so much of his energy, the family that he leaves behind, and all those fortunate enough to have known him over the years. I offer my condolences to his wife, Iva Jo, and their entire family in the wake of this tremendous loss.

Mr. HEFLIN

Mr. HEFLIN. With the recent celebration of Memorial Day, we paused to remember all those who gave their lives in service to their county. This Memorial Day has been especially heartfelt because of the recent anniversary of the end of World War II. Brig. Gen. Edward M. Friend, Jr., gave his life in service to his country, not by losing his life on the battlefield, but by surviving the misery and horrors of war, and returning home to live a life aimed at improving, and bettering his community, State, and Nation. He devoted his time, efforts, and considerable energy to achieving these goals, living up to a longstanding commitment he had to serve others. General Friend was a highly decorated World War II veteran, having fought in the Normandy and Sicily invasions and the Battle of the Bulge, the last attempt by the Third Reich to break through the Allied lines moving toward victory in Europe. Those with whom he served recognized his bravery and skill. He received the Legion of Merit with Cluster, the Croix de Guerre with Palm, the European Campaign Ribbon with seven battle stars and the bronze arrowhead for landing in the Normandy invasion, and the Outstanding Civilian Service Medal. General Friend's many accomplishments did not end with his outstanding military service. After the war, he returned home to Birmingham, AL, to help found the successful law firm of Sirote and Permutt, having already graduated from the University of Alabama Law School prior to the war. Sirote and Permutt eventually became one of the largest and most prestigious law firms in Alabama. For General Friend, service to the community meant serving as president of the Rotary Club, United Way, the Birmingham Area Council of the Boy Scouts of America, the Family Counseling Association, and the Metropolitan Arts Council. His organizational and leadership skills were recognized by the Young Men's Business Club of Birmingham, which named him citizen of the year in 1982 for his accomplishments as chair of the United Way Campaign. It is not in any way an exaggeration to say that he excelled at everything he undertook. The many awards General Friend received during his long life are testaments to his hard work and achievements. He was the recipient of the Alabama Arthritis Foundation Humanitarian Award and received honorary doctor of laws degrees from Birmingham-Southern College and the University of Alabama. He was the Birmingham Bar Association Lawyer of the Year in 1980, received the Educational Advocate Award from the Birmingham Public School System, and was inducted into the Alabama Academy of Honor, and Who's Who in America. While Ed Friend led a life defined by many varied interests and accomplishments, he had a true passion for the law. He was one of the Nation's great lawyers, specializing in the field of tax law. One of America's great trial lawyers, Frances H. Hare, Sr., once told me that Ed, who was his personal tax lawyer, was the best tax practitioner he knew. E.M., as he was known to a great number of his friends, was vitally interested in legal education and the improvement of his profession. His service as president of the University of Alabama Law School Foundation sparked an awareness and the beginning of substantial financial assistance to the law school. His tenure as president of the Brimingham Bar Association likewise initiated many years of improvements in the legal profession. His leadership and participation in the judicial reform movement in Alabama during the 1970's resulted in a vastly improved State court system. His concern and achievements in providing legal assistance for the indigent resulted in his founding of the Birmingham Legal Aid Society and serving as its first president. He was also on the board of directors of the National Legal Aid and Defendant Association. At a relatively early stage of his career, Ed Friend joined the cause of improving race relations in Alabama, and throughout his life, did a great deal to better those relations. He was a great family man. He and his delightful, beautiful wife Hermione were constantly sought out by friends for their company and companionship. Throughout Herme's period of prolonged illness, her husband proved to be a devoted companion. This devotion was true of the entire Friend family, as their children Eddie and Ellen at all times displayed great loyalty to their mother and father. General Friend gave of himself tirelessly and selflessly in ways that are difficult to describe in words. The impact of his work has been felt by those who knew him, worked with him, served with him, and benefited from his generosity. He will long be remembered for the basic good he did--and the dignity with which he did it--as it continues to touch the lives of others in the Birmingham area and throughout the State. He once said during an interview, ``Everyone should strive to make the world a better place. The purpose of life is not to be happy. The purpose of life is to matter, to be productive, to When I think of my great friend and how he described what life meant to him, I am reminded of the Ralph Waldo Emerson verse, ``Success.'' It goes: Success To laugh often and much; To win the respect of intelligent people and affection of children To earn the appreciation of honest critics . . . To appreciate beauty, to find the best in others; To leave the world a bit better, whether by a healthy child, a garden patch or a redeemed social condition; To know even one life has breathed easier because you have lived; This is to have succeeded. If Emerson was correct about the definition of success, then Ed Friend, Jr., succeeded enough for many, many lifetimes. In knowing Ed, I was always struck by how his simple but eloquent family name-- ``Friend''--so defined who he was an how he lived. No other epitaph would be needed than simply his name--Friend. He was a friend to his community, State, country, profession, and to the many, many individuals fortunate enough to have known him over the years. I extend my sincerest condolences to Ed's wife, Hermione, and to their children Frances Ellen and Edward M. III in the wake of this tremendous loss, and ask unanimous consent that a copy of the June 6, 1995, Birmingham News tribute to Ed be printed in the Record. There being no objections, the material was ordered to be printed in

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I rise today to introduce a bill which will allow law enforcement to choose from [[Page S8178]] a variety of drug testing processes. I believe that it is important to fight drug abuse and supply law enforcement agencies with all the available tools. By expanding the range of acceptable drug testing methods State and Federal agencies will be able to weigh the costs and benefits of the different processes to determine the one which best suits their needs. Congress should not enact legislation that limits drug testing alternatives but should let the agencies, with their expertise, make informed choices. This bill will amend the recently passed Violent Crime Control and Law Enforcement Act of 1994 in three areas. The amendments would strike the references to urinalysis as the only drug testing method specifically listed pursuant to conditions of supervised release, conditions of parole, conditions of probation, and residential substance abuse treatment for prisoners. In its place it will include but not limit the choices of testing to: urine, hair, and blood testing. This will ensure that State and local agencies can make use of innovative technology. When drug testing was first introduced, the methods available for testing provided only narrow windows of detection with limited accuracy. This bill will encourage law enforcement to incorporate new technology, such as hair analysis, into their current drug testing regimes. Field studies conducted by the National Institute of Justice show that hair analysis is more effective than urine testing in detecting cocaine, PCP, and opiate users. Also, this innovative form of drug testing promises to be a less invasive, and potentially more revealing, alternative to urine screening. Finally the individual will probably find that snipping a lock of hair is far less offensive than asking for urine samples. The bottom line is that drug use among prisoners on probation, parole, and early release is a constant concern of law enforcement. If there are means of testing which are reliable and detect abuse over greater time periods then those tests should be available and encouraged. The new drug testing technologies have such capability and this bill would simply add them to the list already set forth into law pursuant to enactment of the Violent Crime Control Act of 1994.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I am pleased to submit for the Record the memorializing resolutions from the States of Washington, Hawaii, and Oregon calling on the Congress to pass an amendment to the Constitution that protects the United States flag from desecration. I think these resolutions are a wonderful reminder that the movement and support for an amendment to protect the flag begin at the grassroots level. Up to this point, 49 States have passed memorializing resolutions in support of a flag protection amendment. I ask unanimous consent that the texts of these resolutions be printed in the Record. State of Washington: Senate Joint Memorial 8006 Whereas, Although the right of free expression is part of the foundation of the United States Constitution, very carefully drawn [[Page S7633]] limits on expression in specific instances have long been recognized as legitimate means of maintaining public safety and decency, as well as orderliness and productive value of public debate; and Whereas, Certain actions, although arguably related to one person's free expression, nevertheless raise issues concerning public decency, public peace, and the rights of expression and sacred values of others; and Whereas, There are symbols of our national soul such as the Washington Monument, the United States Capitol Building, and memorials to our greatest leaders, which are the property of every American and are therefore worthy of protection from desecration and dishonor; and Whereas, The American Flag to this day is a most honorable and worthy banner of a nation that is thankful for its strengths and committed to curing its faults, and remains the destination of millions of immigrants attracted by the universal power of the American ideal; and Whereas, The law as interpreted by the United States Supreme Court no longer accords to the Stars and Stripes that reverence, respect, and dignity befitting the banner of that most noble experiment of a nation-state; and Whereas, It is only fitting that people everywhere should lend their voices to a forceful call for a restoration of the Stars and Stripes to a proper station under law and decency; Now, therefore, Your Memorialists respectfully pray that the Congress of the United States propose an amendment of the United States Constitution, for ratification by the states, specifying that Congress and the states shall have the power to prohibit the physical desecration of the flag of the United States; be it Resolved, That certified copies of this Memorial be immediately transmitted by the secretary of state to the president and the secretary of the United States Senate, to the speaker and the clerk of the United States House of Representatives, and to each member of this state's delegation to the Congress.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, the Republican budget now before the Senate makes severe cuts in some essential programs. I would like to direct your attention to, first, the cuts in Medicare. Medicare, of course, is the health insurance program that is provided for our senior citizens. The Republican plan cuts $256 billion from this program. This cut is three times larger [[Page S7058]] than any other Medicare cut in history, without any attempt to reform the health care system which drives up the cost of Medicare. What does this Republican cut mean to the average senior citizen who is on Medicare? It will mean about $900 per year in higher premiums, co-payments and deductibles--$3,200 over 7 years. For a senior couple that totals an extra $6,400 in out-of-pocket costs. There are 641,000 Medicare enrollees in Alabama. Over the 7-year GOP budget, Alabama would lose around $6 billion in Medicare funding. Medicaid is different from Medicare. Medicaid is the program that provides health care services to the poor and also provides nursing home care for those who are not able to pay for it. The Republican plan would cut $175 billion in Medicaid funding. Without Medicaid money families could face nursing home bills of between $20,000 and $45,000 a year. It is estimated that without Medicaid funding nursing home bills would average $38,000 per year. The Republican budget would raise taxes on low-wage, working families by increasing the average of such families' taxes by $1,400 a year. There are 12 million working families that would be hit by this Republican tax increase. This tax increase affected what is known as the earned income tax credit. Former President Ronald Reagan once called the working family tax credit program the ``best pro-family, the best job-creation measure to come out of the Congress.'' This tax increase would affect 309,328 working families in Alabama. Next, the Republican budget severely affects educational programs. It would cut $1 billion in aid to fight guns, drugs, and violence in schools, known as the Safe and Drug-Free School Program; 39 million students and 94 percent of all school districts benefit from the Safe and Drug-Free School Program. One million college students per year would lose their financial aid or have their aid cut dramatically--40 percent--under the Republican plan to freeze Pell grants, the basic opportunity educational grants. The Republican budget would increase college loan costs for 4 million students each year. The average student could pay between $3,000 and $4,900 more for his or her education, depending on how long it takes to repay the loan. Graduate and professional students likely would be paying as substantial amount, on average for their advanced education. In Alabama the Republican cuts in college loans would affect 55,778 students. I am working with several Senators on alternatives to the Republican budget proposal. We can reduce spending and balance the budget in the same time frame the Republicans have targeted--the years 2002--by freezing most programs at 1996 levels and cutting less essential programs than Medicare, Medicaid, education, and other essential programs. A balanced budget can be achieved without having such a dramatic tax increase on those families in American that earn less than $28,000 a year. I point out that the budget on the Republican side has $170 billion in the fund which is reserved for tax cuts. I do not feel that we can sacrifice the senior citizens, those in need of education, and the working poor at the expense of a proposed tax cut that is coming down the road at some later time.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, this year, one of Alabama's most outstanding high school football coaches was inducted into the Alabama High School Sports Hall of Fame. From 1934 until 1942 and again from 1951 to 1960, Howard ``Chap'' Chappell served as the coach of the Deshler High School Tigers, of Tuscumbia, AL, compiling an overall record of 110-52-2. But, Chap did more than just coach. As State Representative Marcel Black once said, ``My favorite stories of Coach Chap are the ones involving his guidance and support to his former players after their careers as high school football players had ended.'' Chap was inducted into the Hall of Fame on March 20, 1995. After graduating from Sylacauga High School in 1930, Chap accepted a scholarship to the University of Alabama. He was a 3-year letterman on football teams that went 24-4-1 and won the first Southeastern Conference Championship in 1933. He was also a star player on the track team, lettering for 3 years. Coach Chappell's first tenure as coach began in 1934. As a senior, he made recruiting trips for the coach, encouraging outstanding high school students to go to the University of Alabama. ``Coach Hank Crisp sent me to Sheffield to see about a boy named Jack Machtoff,'' Chap recalled in an interview. ``I found out about a job opening in Tuscumbia. I went to see superintendent R.E. Thompson. He didn't give me the job then * * * but he called later and said I could have the job if I wanted it.'' So, Jack went to play at Alabama and Chap became coach of Deshler High School. During his career as a coach, he managed to lead 3 undefeated teams. The Tigers were the dominant team in the Tennessee Valley. In 1938, they were described as ``striking with the swiftness of a marauding band of Vikings.'' He left coaching in 1960 to become principal of R.E. Thompson School, a position which he retained until he retired in 1975. Howard Chappell's many contributions have extended beyond his outstanding coaching. As Dr. James Maples wrote: ``I was never fortunate enough to have played for Coach Chap * * * but his spirit, his tradition, his style and his attitude still to this day blanket the stadium that bears his name * * * What makes Chap great, however, what lifts him to heroic status in the minds of his friends and neighbors, is his presence in our everyday lives. That presence goes well beyond the confines of sports. There are young people who think Howard Chappell absolutely hung the moon, who have no idea he ever coached football at Deshler.'' During the war, Chap oversaw the building of the stadium that was later named after him. In 1975, the city of Tuscumbia honored him with a 2-day celebration of his career and contributions to the community. He has served as president of the Alabama High School Coaches Association and the Tennessee Valley Conference. He is active in the First Methodist Church of Tuscumbia and has been president of the Kiwanis Club and member of the Tuscumbia City Commission. During his 84 years, Howard Chappell has been one of the few who can rightly be called pillars of the community. I congratulate him on all of his achievements, and I wish him luck in continuing to shoot his age on the golf course.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, many in the athletic circles of Alabama were saddened last month by the death of Hayden Riley, former University of Alabama basketball and baseball coach. In 1964, 1965, and 1967, his basketball teams achieved upset victories over the University of Kentucky, truly remarkable feats. From 1971 to 1979, he served as the school's head baseball coach, winning two SEC championships. Originally from Guin, AL, Hayden Riley attended Marion County High School, playing four sports while a student there. In 1942, he was called to active duty in the Navy. While stationed at Pensacola Naval Air Station, he played football, basketball, and baseball. After being discharged, he attended the University of Alabama, where he lettered in basketball and baseball from 1947 to 1949. In 1948, he graduated with a degree in physical education and went on to receive his masters in 1953 in physical education and school administration. [[Page S7119]] In 1951, Hayden joined the University of Alabama staff as assistant basketball coach. He became head coach in 1961, staying for 9 years. Legendary coach Paul ``Bear'' Bryant made him assistant athletic director in 1968, and he worked as one of Bear's top football recruiters until he became head baseball coach in 1971. Hayden Riley made many outstanding contributions to the University of Alabama as both a player and a coach. I extend my sincerest condolences to his family and friends, and ask unanimous consent that a news column on his career be printed in the Record following my remarks.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, on August 19, 1944, Parisians rose up in defiance of their German occupiers as Hitler ordered his army to destroy the city. His generals, however, delayed the order, and American and Free French Forces liberated Paris on August 25. Meanwhile, General Patton was racing eastward toward the German border and Rhine River. To the north, British Forces led by Field Marshall Montgomery swept into Belgium and captured Antwerp on September 4. On September 17, about 20,000 paratroopers dropped behind German lines to seize bridges in the Netherlands. But bad weather and other problems hampered the operation. Adolf Hitler pulled his failing resources together for another assault. On December 16, 1944, German troops surprised and overwhelmed the Americans in Belgium and Luxembourg, but they lacked the troops and fuel to turn their thrust into a breakthrough. Within 2 weeks, the Americans stopped the German advance near Belgium's Meuse River. This offensive in the Ardennes Forest of Belgium and Luxembourg became known as the ``Battle of the Bulge,'' because of the bulging shape of the battleground as it appeared on a map. It was to be among the war's most bloody battles. Although Hitler's men knew they were beaten, it became clear that complete victory over Germany would have to wait until 1945. Soviet Forces entered Poland, Romania, and Bulgaria in January 1945. The Germans had pulled out of Greece and Yugoslavia in the fall of 1944, But held out in Budapest, the capital of Hungary, until February 1945. Vienna fell to Soviet troops in April. By then, Soviet troops occupied nearly all of Eastern Europe, a sign of victory then, but, in retrospect, also an ominous harbinger of the nature of the post-World War II world. The Allies began their final assault on Germany in early 1945. Soviet soldiers reached the Oder River, about 40 miles from Berlin, in January. Forces in the West occupied positions along the Rhine by early March. British and Canadian Forces cleared the Germans out of the Netherlands and swept into northern Germany as the Americans and French raced toward the Elbe River in central Germany. Hitler ordered his soldiers to fight to the death, but large numbers surrendered each day. The capture of Berlin was left to the Soviets. By April 25, 1945, they had surrounded the city. From a bunker deep underground, Hitler ordered German soldiers to fight on. On April 30, he committed suicide. He remained convinced that his cause had been right, but that the German people had ultimately proven weak and unworthy of his rule. Grand Adm. Karl Doenitz briefly succeeded Hitler as the leader of Germany, almost immediately arranging for Germany's surrender. On May 7, 1945, Col. Gen. Alfred Jodl, Chief of Staff of the German Armed Forces, signed a statement of unconditional surrender at General Eisenhower's headquarters in France. World War II in Europe had, at last, come to an end. Fifty years ago, the Allies declared May 8 ``V-E Day''--Victory in Europe Day. America could now concentrate all of its strength toward the battle still being waged in the Pacific, which would last for 3 more months. Today, the world celebrates a victory that represented the triumph of good over unspeakable evil, and the promise of a peaceful future for a Europe battered and torn by the bloodiest war in its history. May 8 is particularly special this year, since it marks the 50th anniversary of the end of the European chapter of World War II. As the Allies had advanced in Europe, they discovered the horrifying remnants of the Nazis' ``final solution.'' Hitler had ordered the imprisonment of Jews and members of other minority groups in concentration camps. The starving survivors of the death camps gave proof of the terrible suffering of those who had already died. Today, we are familiar with those faces and pictures of death and destruction, but that familiarity has not led to understanding in many cases. We have the Holocaust Memorial Museum as a reminder of the past and as a warning to future generations of the grave dangers that are the ultimate fruits of hate, division, depravity. Victory in Europe Day, then, is also a time to reflect and to ask ourselves how such brutality could have been inflicted on the human race, and how it can be prevented from ever occurring again. Hitler's rise to power was based upon a message of hate, of pitting one class a message of division, of blaming others for one's problems. During the early 1930's, Hitler instituted a policy of elimination of political opponents, of ``enemies of the state.'' According to the statutes of the security police, Jews, politically active churches, Freemasons, politically dissatisfied people, members of the Black Front, and economic manipulators, among others, were singled out for persecution. Hitler set down his political goals in his notorious book, ``Mein Kampf.'' His foreign policy plans revolved around the central aim of exterminating the Jews as the mortal enemy of the Aryan race. During the first stage, following the seizure of power, the ``cancerous democracy,'' as he called it, was to be abolished, and Jews, Bolsheviks, and Marxists were to be banished from the national community. Following the internal consolidation of the Reich, the German position in central Europe was to be secured step by step and then strengthened into world dominance. While Hitler had fought the existing government aggressively prior to his imprisonment for high treason, during which he wrote ``Mein Kampf,'' he adopted a new tactic after his early release from jail. Power was to be won slowly and legally as he systematically and methodically built up the Nazi empire. He used the Reichstag fire of February 27, 1933, as an opportunity to replace the constitutional laws of the Weimar Republic by passing an emergency decree ``to protect the people and the state.'' This marked the beginning of the hounding and arresting of political opponents, especially those on the left. The public was subjected to propaganda on a grand scale, instructed ``to think nothing but German, to feel German, and to behave German.'' Germans were also placed under heavy surveillance by the police and secret agents. Hitler was able to create the Nazi state by fanning the flames of paranoia, distrust, and fear. By making the Jews and others ``faceless rats'' devoid of humanity, he was able to make his henchmen commit acts which shock and offend our sensibilities as human beings. He was successful in making these groups scapegoats responsible for all of Germany's economic and social ills. Just as some today try to divide, demonize, and scapegoat, Hitler managed to unite his people through their hatred of common enemies. Too often today, the solution to our problems seems to be to blame someone else--the poor, minorities, immigrants, and bureaucrats. The politics of blame is a basic tactic of those who preach intolerance and division, whether on the left or right. Hitler was perhaps history's most terrible and tragic example of what can result when the politics of blame and hate are allowed to fester and grow. Too often, people attempt to glorify themselves by tearing down those with whom they disagree and by pitting one group against another. We need a return to moderation, tolerance, responsibility, and compassion so that nothing approaching the Holocaust and the hatred which fostered it will ever be allowed to again scar humanity in such a way. It is appropriate to take the time to not only celebrate V-E Day and reflect upon the roots of what led to World War II, but to also remember the selfless heroism of the 15 million Americans and the millions of other Allied servicemen who fought valiantly to preserve the democratic ideals that we so cherish. All risked their lives, and, sadly, some 407,000 Americans gave their lives to defend those ideals and the individual freedom and human rights upon which they are based. Fifty years after V-E Day, the light of history has shone brightly on the complex and harrowing events of World War II. Much of what has been revealed makes us shudder, and we would just as soon it not be illuminated. But only by looking can we learn, and as each year passes, we realize more fully just how much we owe our veterans for their patriotism, bravery, and sacrifice in serving on the battlefields of Europe during World War II.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I have reservations about this in regard to what has occurred, but I am faced with reality, the reality of votes, and the reality of conference. Senator Shelby and I, therefore, are approaching this issue from a pragmatic, not philosophical, viewpoint. I just want to make that clear.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I rise to speak against passage of this bill. I realize that, with cloture having been invoked, my words may not change many votes, but maybe they might change one or two. And then I feel like maybe my remarks, in a strong adversarial posture, might appeal to the reason of Senators to encourage them to eliminate some of the grossly unfair provisions that are in this bill. I might say in the beginning that I believe the difference between the caps that are put in this bill and the fact that there were no caps in the last bill reflects a change in the makeup of the Senate, as a result of last November's elections. There are caps in this bill with an additur provision whereby a judge could increase a jury's award of punitive damages. Clearly, that has already been ruled on by the Supreme Court as being unconstitutional. The case of Dimick versus Schiedt was decided in 1935 on that issue and makes the additur provision unconstitutional. In my judgment, there are a number of other unconstitutional elements that should be pointed out. One is the matter pertaining to the role of the U.S. circuit courts of appeal being able to determine controlling precedent on the State courts within the jurisdiction of the Federal circuit. provides that the judicial power of the United States shall be vested in one Supreme Court, has been construed to mean that the State courts must follow the decision of the Supreme Court and not the lower Federal courts. The case of Erie versus Tompkins basically says that the Federal courts, in diversity cases, shall follow the substantive law of the State. There is no question that the Federal courts, through its rulemaking process and Congress, pursuant to its powers under the Rules Enabling Act, control in regards to procedural matters. I just want to mention that. I want to direct the Senate's attention to a chart that Senator Levin produced and used in a previous argument. I thought it was an excellent presentation, and I ask unanimous consent that this table be printed in the Record.

Mr. HEFLIN. Mr. President, this is chart entitled ``Preemption of State Product Liability Laws,'' and it has a column of State laws more favorable to plaintiffs and State laws more favorable to defendants and what happens as regards preemption under this legislation. First as to the liability of product sellers, that is retailers, this bill prohibits any laws more favorable to plaintiff, but it allows laws more favorable to the defendants. Second, with respect to the alcohol or drug abuse defense, the bill prohibits State laws more favorable to plaintiffs but it allows State laws more favorable to defendants. Third, as to the misuse or alteration of product defense, the bill prohibits State laws more favorable to plaintiffs but allows State laws more favorable to defendants. Punitive damage limitations are treated the same way--unfavorable as to plaintiffs and favorable as to defendants. As to the statutes of limitations, that is the one and only provision that really exists in this whole bill is as to uniformity. With regard to the statute of repose provision of 20 years, this bill preempts State laws more favorable to plaintiffs but not those State laws more favorable to defendants. On the issue of eliminating joint and several liability for noneconomic damages, this bill preempts State laws which are more favorable to plaintiffs but allow State laws which are more favorable to defendants. And you have the biomaterials provisions which are treated in the same manner. I think this chart Senator Levin prepared is a very excellent chart, and I hope my colleagues will take time to reflect upon it. Now, I want to also direct my colleagues attention to the potential costs of the bill, an issue which I hope will be investigated, because I do not believe CBO or anyone else has looked at this matter very closely. There is language in the bill that includes within the scope of the word ``claimant'' a governmental entity which includes the Federal Government and all of its entities. I do not think there is any question that the purpose of this bill is to save product manufacturers money. The Government, as a claimant, would be bringing suit against a defendant, and if the purpose of the bill is to save money, it means it saves money for the defendant, for corporate America, when the Federal Government brings suit. So the cost to the Government has never been calculated, and there are so many things that are involved, particularly like the statute of limitations and statute of repose as to helicopters, tanks, NASA equipment, and all of GSA's equipment, and every conceivable way regarding which products are purchased by the Government. The issue of costs to the Government ought to be looked at more closely in my judgment. Now, there is also a provision dealing with foreign nationals and foreign governments, and I realize that this is under statutory construction, that nothing in this title can be construed to preempt State choice of law rules with respect to claims brought by a foreign nation or a citizen of a foreign nation and, in effect, the right of any court to transfer venue, or to apply the law of a foreign nation, or to dismiss a claim of a foreign nation, or of a citizen of a foreign nation, on the grounds of inconvenient forum. In the world of terrorism today, these issues ought to be addressed. Hopefully, in the terrorist bill that will come before the Senate in the coming weeks, we will give some consideration regarding this issue. The Senate ought to make certain that the provisions of this product liability bill do not in some unintended way give some advantage to a terrorist entity. I think one of the most unfair provisions in this legislation is the provision that says that an injured party cannot introduce in the compensatory damage part of a trial elements of conduct that constitute a cause of action for punitive damages. Therefore, as I have pointed out before, gross negligence, recklessness, wantonness, intentional conduct, and all activity of a similar nature, is prohibited from being considered in the main trial for compensatory damages. To me, that is one of the most unfair provisions that exist in this bill. The biomaterials section and the definition of implants therein, where there is language regarding coming in contact through a surgically produced opening and coming in contact with bodily fluids or tissue, in my judgment, is a wide-open situation for a great deal of problems pertaining to component parts of the implant, and I urge that that be carefully reviewed. Some of these issues which I have just reviewed--and I hope some people in the White House are listening to me as I speak about this-- ought to be carefully considered not only by the Department of Justice and every agency of Government that could be affected. Certainly, the FDA ought to consider the language that is being placed into this bill as to matters dealing with the human body in that biomaterial definition of ``loss.'' Of course, the very basic unfairness of the bill begins with the fact that commercial loss, which is a business loss, is excluded from being within the purview of this bill. Of course, I have given illustrations on the floor about the fact that if a factory blows up and people that are injured from the faulty, defective product, they come under this bill; but for commercial law, they do not. Some say the commercial loss exemption might be applied to individuals. I remember there was a ``Dear Colleague'' letter circulated on this issue. I would imagine in that instance we would find it would be rarely ever used, we might find out of 2,000 employees in a factory where a boiler blows up, we might find that there might be one moonlighting sock salesman. That would be the only way that we would have, basically, any commercial loss that would occur to that individual. Now, most of all of the business litigation and most of the punitive damages awards that have come about are business or commercial losses. The case of Pennzoil versus Texaco was, for example, probably the largest punitive damages case that has ever been awarded, and it was a commercial litigation where business was suing other business. There are other provisions throughout the bill that are very unfair, and I have listed them in previous arguments. I hope that this bill will be carefully reviewed in conference and we will see the removal of a great number unwise provisions. I just appeal to the conscience of the people that are involved who will be in conference on this, and appeal to the White House to look at this matter when it reaches conference between the House and Senate. It just shocks the conscience to see the unfairness that exists in all the various provisions of this bill and I hope that I have pointed out the key issue very clearly for my colleagues to consider. Mr. President, I urge that we vote no on final passage. colleagues would vote aye on this bill. Mr. President, while I had my doubts, I have believed for a long time that the Senate would eventually come to this point. Inexorably, it would happen. After many years of debate, many years of filibusters on this Senate floor, this body finally has a chance to cast its vote for what I think is responsible, balanced punitive damages tort reform. I think the vote yesterday was historic. The Senate, for the first time, broke the log jam that has blocked action on what I referred to last night as a deadly serious issue, and the Senate has blocked that for years and years. Now the Senate has said, ``proceed.'' My belief that this time would come is based on several points. First and foremost, the problems with our punitive damages system cry out for solutions. We are here for that purpose. We were elected to address the problems that require attention and action. We have done so to the best of our ability. In this case, because products by definition, virtually, involve interstate commerce--that point has been made but not accepted, I suppose, by all--70 percent of everything we make in West Virginia is sold in another State. By definition, States cannot preoccupy this field. This is precisely an area where Congress needs to step in. Each State really cannot fix the flaws of the country's interstate product liability system. That is because the biggest problem involves the patchwork--varied, unpredictable nature--of every State in the union having different product liability rules and standards. Businesses that sell or manufacture products are subject to the endless confusion, the hassle, the court costs, the wasteful costs, in general, of this maze. Consumers who want safe products want more products that will increase their safety and cannot get them. Consumers who are victims of defective products and cannot get recompensed for an average of 3 years, are also hurt by the delays and the costs that stem from the product liability system. So businesses hurt, consumers are hurt. We have a problem. My interest in these problems really stem from seeing the way they hurt my own State of West Virginia. Manufacturers, small businesses, the fear, consumers, workers, and the victims of defective products. The Senator from North Dakota several moments ago said that there has only been x numbers of liability cases in the last 2 years, 10 years whatever. That argument has been used many, many times. It is a very misleading, false argument. It is not the number of punitive damages awards that have been granted. It is the threat which exists in every case, in every suit, of which there are unending numbers in this litigious society. It is the threat of litigation that is the problem and has crushed so much innovation and research and development which would help consumers. My interest, again, in West Virginia comes from knowing people who directly have suffered from this and have gone out of business from this, as well as victims who have been hurt by this. I have seen the victims who came back from the Persian Gulf war with something called a mystery syndrome illness which the Defense Department says does not exist, but I see these people and I know it does exist. When we see the people, and we see the individuals and we see they are hurt, we want to help them. To put it simply, then, the product liability system is broken. The Congress and the President must have parity. Second, I have believed that a product liability reform bill would eventually pass this Senate because of the way some Members have approached the effort to cause it to pass, which I believe it will. Members of both sides of the aisle have been troubled by the problems with product liability. Some time ago the bipartisan team work necessary to enact legislation began to form. In the past 4 years, the Senator from the State of Washington and I have had the job of leading that team. The Senator from Washington and I made a pact: To promote a balanced, moderate, serious, legislative remedy to these problems in product liability, tort reform. We let the businesses interested in reform know that the consumers and victims had to be the winners of reform, too. We made that very clear and have made that very clear up until the very last moments. We have kept making it clear. We explained to the general public that the harm done to business by the problems with product liability also hurt the general public, which is called the rest of the country. They cost jobs, they stifle the innovation needed to make safer drugs and products, and they impose an enormous hidden tax on every American. That is why we devised a bill to deal with the range of problems that affect different sectors of the society, and we did it fairly. In this legislation we promote quicker settlements through alternative dispute resolution. We insisted on that so victims get compensation faster. We give the victims of harm done by substances like asbestos enough time to seek relief by saying the clock can only run after they discover the harm that they are suffering and, again, the reason, the cause of the harm they are suffering. We have made a number of adjustments in the way businesses are made liable for the impact of products where the rules are not fair to them. But my point is also that this bill reflects the balance and the moderation that emerges when Members of both sides of the aisle choose to work together, choose to trust one another, choose to accommodate the diverse concerns that arise when a complicated topic like product liability comes up. We are not seeing a lot of bipartisanship in the legislative process these days, and it is sad. It is more than sad for the country, it is grievous. I find all of that very troublesome. I think it is essentially a disservice to the country. We are a diverse nation with a Government designed to represent our differences and built with checks and balances on one another. We should draw on the strength of that diversity. Democrats and Republicans in the Senate should spend more time, I think, working together on the country's problems, working out solutions that will last and that will take root. I think we do that in this bill. And when we do have bipartisan cooperation and it works, it only encourages us to do more, I hope. That is why the Senator from Washington and I formed the team to deal with the problems of product liability, and we intend to maintain that bipartisanship until we see a bill signed into law sometime later this year. Finally, my belief that product liability legislation would pass has been based on the talent and the leadership that have been invested in this effort. Many Members of this body have contributed to this arduous, difficult effort. Senators Dodd and Lieberman have been staunch allies, and their staffs, Tony Orza and Nina Bang-Jensen. Senators on the other side of the aisle, from the majority leader to the chairmen of the Commerce and Judiciary Committees, have played essential roles in this. It is impossible to fully explain how much I respect and appreciate the Senator from Washington, Slade Gorton. I think he stands out for, first of all, his acumen, his amazing mind, his tenacity, the wisdom of his counsel, his calmness under substantial fire, and his commitment to reform. The staff who have assisted in this effort I think deserve medals for their valor and service and for their, by the way, exhaustion. On Senator Gorton's staff, Lance Bultena and Trent Erickson have been steady, quiet, dogged, and perfect in helping us work this through. Assisting me, I cannot thank enough, and I would need to start with Tamera Stanton, who is my legislative director who sits at my left as I speak, who masters all subjects with tenacity and with understanding, is skillful in her sense of nuance, strategy, politics, and policy; Ellen Doneski, who does not know how to stop working, and as a result never does stop working and accomplishes incredible, amazing things, often many at the same time, so she just never stops working; Jim Gottlieb and Bill Brew, both in fact lawyers, which we need in our office. And they have both been brilliant, skillful, dogged, and successful. Without their labors and their incredible talent we would not be at this point. want to make the point again that, if you pick up the paper, you will read Senator Gorton's name. If you listen to the television, you will hear his name and Senator Hollings' name. And they can both do all of this on their own, pretty much, anyway. But actually it does not quite work out that way. Just as Senator Hollings, Kevin Curtin, and others-- it is the public that needs to know, while they are in their orgy of dislike for the Federal Government, that there are incredible people called staff of the U.S. Senators who make possible what it is that we do. I want to acknowledge with respect the persistence and commitment of the flag-bearers who took the other side on this issue. The Senators from Alabama and South Carolina are daunting in their own legal minds and ferocity when it comes to this issue--both of them. They are different in many ways, the same in many ways, but both of them are extraordinary in their commitment to their beliefs. I hope they would agree it was a fair and open debate. They prevailed in the past without exception. It worked out the other way this time. This has not been an easy issue for anybody involved. The legal system is a very serious part of our national fabric and life. The rights of every American are fundamental and are not to be tampered with easily. I have always felt that, as I have fought for product liability reform, in a sense I restate my pledge to navigate the remainder of the legislative process with a deep commitment to the principles of fairness and justice. But I remain absolutely sure that it is time to fix this broken part of our legal system, and I think we have done a lot of it. The country is saddled with costs, with waste, with problems that can be eased with the reforms in this legislation.

Mr. HEFLIN. Mr. President, I would like to congratulate Senator Hollings for his outstanding work in regard to it, although we did not come out victorious. He is a great comrade in arms and has had a vast amount of experience on this matter. I suppose that looking back over the years, 15 or more years, he has fought these battles and I have been with him throughout, and he has tremendous knowledge in this area. Originally, this bill was designed not to go to Judiciary. It was designed to go to Commerce. At that time, Senator Hollings was not chairman. But obviously, it is a bill that deals with the judicial system. From the very beginning it was designed to avoid a careful scrutiny in regards its judicial impact. Fortunately, over the years, we had an individual who was an outstanding lawyer, and who had been an outstanding trial lawyer, Senator Hollings in the State of South Carolina, and who has been there to deal with this matter. I would also like to thank the staffs of Senator Hollings and others who have been so important. They have really exhibited tremendous knowledge of the law. They have followed this legislation diligently and have done a tremendous job. Senator Hollings has named them, and I will not repeat their names. But on my staff, Winston Lett and Jim Whiddon have worked tirelessly and diligently on this legislation, and I thank them for their great service in our legislative efforts. I also want to congratulate Senator Rockefeller and Senator Gorton for their advocacy in pushing forward on their bill. They just seem to have better allies than we did. I always at the end of a lawsuit, whether I won or lost, went over and congratulated my opposing counsel, and do so today. We will be having other battles as they come down the road, and sometimes we will be compatriots. We will be cosponsors and joint fighters in the same cause. Then, as it is with all Senators, we will be on opposite sides again in the future on some issue. But that is the way the Senate works; that is the way democracy works. During the debate on a great issue, you can disagree but you do not have to be disagreeable. I think that Senator Gorton and Senator Rockefeller never showed any disagreeable nature. I disagreed with them with respect to the cause the were advancing, but not in the manner they advanced it; they played fair and square. I want to thank them particularly for working out a settlement in regard to the unique and different situation as to Alabama's wrongful death statute. We worked out a situation by which the amendment was adopted giving time to our State legislature or to our courts or to both to find a solution to be able to fit into this bill, if it is finally passed. Then I want to say, while I will congratulate them, please do not take that as any indication that I have ceased to fight. I have not surrendered and will not give up in my efforts to maintain the traditional role of the 50 States in allowing them to fashion their own solutions to problems which may arise with regard to product liability laws. I believe the 10th amendment to the U.S. Constitution still has some meaning, and I will continue to assert the primacy of the States on these matters. There are appeals. There are appeals to conference, there are appeals to the White House, there are appeals to the President to eliminate the unfairness of the bill or to see the death of this unfair bill. So we will continue to fight. The battle is not over. We have not surrendered, and we will continue to battle in the future because we feel we are battling for the injured parties, side. And we ask the Lord to give us a little more guidance in regard to these appeals as we move forward. So I thank everybody concerned who has put up with me, and we will continue to battle on this issue as well as other issues that come up that affect the rights of the people. Mr. DOLE addressed the Chair.

Mr. HEFLIN

Mr. HEFLIN. Madam President, I only want to speak briefly right now relative to this matter. I think the Senator from Michigan has covered the issue on additur very adequately. In the case of Dimick versus Schiedt, a 1935 Supreme Court case, the High Court ruled that the district court lacked the power to deny a plaintiff a new trial, sought on the ground that the jury award of damages was too low, when the trial court judge proposed to increase the damages and the defendant had consented in order to avoid a new trial. The Supreme Court held that the power to increase a damage award, known as an additur, was a violation of the right of trial by jury. According to the Court, the amount of damages must be determined by juries, not judges, in the Federal court, subject to the right of courts to set aside jury awards that are clearly excessive. Some State courts have held that additur violates their State's constitution as well. That is the major point that I want to make on this issue. Senator Levin mentioned this matter pertaining to the lack of uniformity. I want to also point out that all State courts under the bill and the substitute--any of the substitutes--are to accept as binding precedents in the construing act, the decision of a Federal court of appeals covering this mandate. This mandate, in my judgment, is clearly unconstitutional and contrary to article III of section 1 of the Constitution, which provides that the judicial power of the United States shall be vested in one Supreme Court, which has always been construed to mean that State courts must follow the decisions of the Supreme Court and not the lower Federal courts. With the addition of the punitive damage additur provision in the substitute, there is an expansion by Congress of an extraordinary nature to encroach on the power of the State courts. Rules concerning the use of additur and remittitur have always been left to the State courts, as have also every other State rule of civil procedure. I just wanted to mention that. I think there are others who are desiring to speak. I yield the floor at this time. Several Senators addressed the Chair.

Mr. HEFLIN

Mr. HEFLIN. Madam President, Dr. Wayne Teague served as Alabama's Superintendent of Education for almost 20 years, from October 1975 through March 31 of this year. During his tenure as Alabama's top educator, public education in Alabama has prospered. His many years of public service are a hallmark of exceptional commitment and dedication to public education and to the children of Alabama. There has been a great deal of progress in Alabama education since Wayne Teague took over as superintendent in 1975. His many contributions have made tremendous improvements in the State's public school system. His many successes and vast knowledge were once recognized by the British Council of Great Britain, when he was one of only three chief State school officers invited to participate in the American Education Policy-Makers' Study Trip to Northern Ireland in 1990. Of Dr. Teauge's many wonderful personal attributes, the one that probably served him best while he was superintendent was his unique leadership style. He was able to master the art of cooperation with a myriad of groups for the benefit of the public schools. Government officials, parents, teachers, students, administrators, and business, civic, and educational leaders all gained admiration and respect for him over the course of his career as they observed his many accomplishments for Alabama's school children and for education overall. Wayne Teague received his bachelor's, master's, and doctoral degrees all from Auburn University. Prior to becoming State superintendent, he was a local superintendent, college professor, principal, and teacher. Since then, he has become widely known throughout the State and country not only as a superb superintendent, but also as an authority on State and Federal legislative relations, a civic and community activist, a public speaker, and author. He has participated in several international activities and received numerous honors and awards for his service in education. Dr. Wayne Teague certainly emerged as one of the giants of education while he was superintendent. He possesses all the skills, experience, and professional attitudes that make an outstanding leader. As much as he will be missed, I salute and congratulate him for a job well done, and offer my best wishes for his long, healthy, and fulfilling retirement.

Mr. HEFLIN

Mr. HEFLIN. If the Senator will withhold the quorum call, regarding what the Senator has said about asking unanimous consent, I think Senator Hollings should be on the floor to respond to that. I think he has some feelings on it. However, I do realize this: It is my information that unless that happens, then unanimous consent is going to be necessary for each and every amendment to occur. Now, I have been talking with various people on our side who are very knowledgeable on parliamentary proceedings. I think it is something we will want to look at. If we enter into a quorum call, we ought to investigate and see exactly what the parliamentary status is and what Senator Hollings' feelings are on that. He articulated to me earlier rather strong feelings against it. But he may have reconsidered it since that time.

Mr. HEFLIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HEFLIN. Mr. President, during the course of debate in discussing the breadth of the products liability bill, I mentioned that a nuclear power plant or a component part thereof could be included within the purview of the products liability bill. I also stated that maybe the bill might not cover a nuclear power plant or a component part thereof. I, in effect, raise two issues: One being the issue of pain and suffering, and the other being the statute of repose. In regard to these issues, I mention the Chernobyl melt-down. Since that time, my office has been contacted by reliable and informed individuals who feel that I misspoke on this issue. First, they say the difference between design and operation of the United States and Soviet plants make a Chernobyl-style accident virtually impossible. Second, they state that the bill would not in any way prohibit compensation for injured parties in the event of a nuclear accident regardless of the time of the manufacture of the plant or components. They particularly point out that Congress has provided a sure and certain recovery system for any member of the public injured as a result of a nuclear power plant accident--the Price-Anderson Act--and, further, that Congress in 1988 increased the amount of funds available for claims to more than $6.8 billion and pledged to review the situation in the case of an accident where more funds were needed to compensate the injured. The nuclear power industry, I am told, has willingly agreed to be assessed up to $63 million against each licensed reactor in order to pay damage claims. The nuclear power industry has met this obligation to provide a clear and reliable source of liability compensation when it is justified. While I have not researched this issue completely, I do find that following the case of Klick v. Metropolitan Edison Co. (1986, CA3 Pa) 784 F2d 490, which limited certain damages to an ``extraordinary nuclear occurrence,'' Congress did amend the Price-Anderson Act to include a ``nuclear incident.'' In the exclusion clause of the products liability bill there is a statement to the effect that the bill does not supersede any Federal law. I have great confidence in the knowledge and reliability of the individuals who have brought this to my attention, and I would like to put the record straight. I will continue to research this matter; and if there is anything different from what I have been told, I will make it known to the Senate. I yield the floor and suggest the absence of a quorum.

Mr. HEFLIN

Mr. HEFLIN. I join with the distinguished Senator from Alabama [Mr. Shelby] in his amendment. Of all of the 50 States, Alabama has a different method pertaining to the recovery of damages when a death occurs as a result of culpable action, regardless of whether it be simple negligence, gross negligence, willful conduct, intentional conduct, wanton conduct, any type of conduct that allows for the recovery. It allows under the interpretation given for this statute that punitive damages only can be recovered. It is different from other States where most of the other States allow a plaintiff, the executor or the administrator or the parent of the child, if deceased, to be able to introduce, for example, hospital bills. A person may have died after 6 months in a hospital, and under hospital bills of today they can accumulate to over $150,000. Burial expenses in most States can be introduced into evidence and can be an element of compensatory damages. Loss of earning capacity, noneconomic damages, pain and suffering in some instances in some States can be introduced as an element types of damages. But in Alabama you are not allowed to introduce any of that. You attempt to introduce a hospital bill, and a doctor's bill, and whether they were $150,000 or whether, on the other hand, they amounted to $500 or $25, you cannot introduce that in evidence as an element of damages under the Alabama wrongful death statute as has been interpreted, and the charge to the jury is that it is a matter of punishment for the wrongdoer, and therefore it is limited to that. Over the years, the companies, corporate America, in Alabama, insurance companies, defense counsel who represent them, have fought to maintain this, and over the years the plaintiffs' lawyers have come to live with it, and therefore it is accepted as being the measure of damages. However, under the provisions that we have here under this bill in product liability cases the provisions pertaining to this would apply. And under the DeWine amendment, you would be limited in a situation with regard to that to almost zero, where there would be nothing that could be recovered, and it would limit it, restrict it substantially. So I support the Shelby amendment in this regard. This is a situation that applies only to Alabama. The language of this bill is basically the same language that was considered in the 101st Congress and in the 102d Congress. They came out of the Commerce Committee. We had pointed this defect out, and the drafters of the bill, including people who had been working on product liability, put a provision in those bills that would allow for the Alabama law to prevail. We offered it as an amendment in regard to the Gorton and Rockefeller underlying substitute, and it was accepted after they made some changes in the language. Senator Shelby and I are agreeable to any changes in the language of the Shelby amendment that they might want to propose provided it allows for recovery--it is limited strictly to the wrongful death cases, and therefore we are amenable to any change that they might make as long as it does not abolish, or greatly minimize the recovery under the Alabama statute. So we feel that this is something which should be adopted. Otherwise, it is singling out Alabama, and Alabama has a very unique, they argue, uniformity, and the preemption matters ought to be uniform among all of the 50 States. But what it means is that in the preemption which does bring about some uniformity as it would apply to the preempted sections, that it will not apply to Alabama. And it is a very discriminatory act in regard to Alabama. I would think that it has, from a Federal constitutional basis, some imperfections in regard to it. I urge my colleagues in the Senate to support the Shelby-Heflin amendment. Amendment No. 693, as Modified Mr. SHELBY addressed the Chair.

Mr. HEFLIN. I assume section 107, I ask Senator Gorton, is the section dealing with punitive damages.

Mr. HEFLIN. So it is limited to that. But does that include the DeWine amendment and language in regard to small business, and the individual relative to the $500,000?

Mr. HEFLIN. That is all included in section 107, all punitive damages?

Mr. HEFLIN. I thank the Senator. Mr. GORTON addressed the Chair.

Mr. HEFLIN. Did not have what? I did not understand the Senator.

Mr. HEFLIN. Mr. President, I am rather surprised to hear my good friend from Washington, who has long been an advocate of federalism, come forward with language from the screaming Federal Eagle over States saying: ``Alabama, you change your law or else you don't get even peanuts.'' In other words, this is federalism in reverse, the big Federal Government that we have heard so much about telling the Alabama Legislature and the Alabama courts, ``You change your law.'' Now you have preemption that takes place. This is a mandate as to whether a claimant is going to recover or not. I am rather surprised that we would hear that language coming from such a strong supporter of the concept of federalism. If the Federal Government is going to tell a State you do this or not, we usually give them a carrot or some type of incentive. But my colleague's position is, to me, an example of brute force--``you change your law or you're not going to be able to protect your people.'' Then we have the additur provision pertaining to the judge. Clearly, that is unconstitutional. The Supreme Court of the United States, in the case of Dimick versus Schiedt, has already ruled on that issue. In practice what will occur is where an additur is made by the judge but the defendant does not want to accept the new amount, the defendant or defendants will request a new trial. However, that is what appeals are for--new trials. So, automatically a defendant will ask for a new trial if he does not like what the judge added to the judgment. If the judge, therefore, feels that the punitive damage award was inadequate, because the defendant's conduct was extremely egregious and the plaintiff's injuries were great, the judge could award additional punitive damages. In the normal course of events, when the judge adds that to the damage award, a defendant takes an appeal to reverse it where he could get a new trial. But, the punitive damages provisions of this bill give defendants the automatic opportunity to request a new trial. Well, what defendant is going to not take advantage of it? Every defendant is going to say, ``Give me a new trial. I can keep my money, draw interest on my money in the meantime, and delay a new trial for 2 years.'' Therefore, if the overall award was $300,000, and if the judge added to it above the $250,000 cap that is in this bill, the defendant takes its $300,000 and draws interest or makes investments with it. Defendants are going to follow that course of action with the idea also that they have to go back to a new trial which means that every issue will have to be litigated all over again. There is not much to lose in following this course of action. So automatically you are going to find that every defendant is going to demand a new trial. What happens? A defendant knows he is not going to get any more than what was originally put in the judgment, the amount he put there. Then it comes back to the judge again and the judge says, ``Well, I believe that that conduct was so egregious and find this is a terrible case and that the defendant ought to be punished, and therefore, I will again make an additur.'' What does the defendant say? ``Well, I have under this bill automatically a right to a new trial, and I demand a new trial.'' So the defendant delays it 2 more years, draws his interest, and makes his investments in the meantime. Then he goes back and retries it and gets the same judgment. Then the defendant says, ``All right, I'm going to take advantage of my opportunity for a new trial'' and receives a new trial. So the case is tried a third time and, finally, the plaintiff says, ``It doesn't make any difference what the judge adds, there is no way in the world that I can collect it, and I just have to give in, there is nothing I can do.'' The judge and the jury felt that defendant's conduct was egregious and met the extremely high standards of this bill. However there is no way under this language that a defendant can ever recover because instead of having the normal event of trying to reverse a case on appeal and have a new trial, the defendant just has an automatic right to a new trial on punitive damages.'' When you think about it, the situation is just plain ridiculous. I think Alabama's legislature and its courts have the clear right to determine that its wrongful death statute is to be punitive in nature only, recognizing the sacredness and value of human life. The concept of federalism that every State has its right to choose its laws ought to respect that right of my state. But here we have the American Federal Government imposing, and intruding, and saying: ``All right, you can't recover for the death of an Alabamian or the death of a Washingtonian if you are traveling in Alabama or any other individual that might be there.'' What we are asking is, let us allow federalism to prevail, and if the State of Alabama wants to, it can continue to recognize the validity of its wrongful death statute which is designed to protect its citizens by making it of a punitive nature only. I yield the floor. Mr. GORTON addressed the Chair.