[Congressional Record Volume 148, Number 81 (Tuesday, June 18, 2002)]
[Senate]
[Pages S5656-S5659]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            TERRORISM RISK INSURANCE ACT OF 2002--Continued


                           Amendment No. 3862

  Mr. SPECTER. Mr. President, I call up amendment No. 3862.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Pennsylvania [Mr. Specter] proposes an 
     amendment numbered 3862.

  Mr. SPECTER. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The amendment is as follows:

 (Purpose: To provide for procedures for civil actions, and for other 
                               purposes)

       On page 29, strike line 1 and all that follows through page 
     30, line 17, and insert the following:

     SEC. 10. PROCEDURES FOR CIVIL ACTIONS.

       (a) Federal Cause of Action.--
       (1) In general.--There shall exist a Federal cause of 
     action for claims arising out of or resulting from an act of 
     terrorism, which shall be the exclusive cause of action and 
     remedy for such claims, except as provided in subsection (f).
       (2) Preemption of state actions.--All State causes of 
     action of any kind for claims arising out of or resulting 
     from an act of terrorism that are otherwise available under 
     State law, are hereby preempted, except as provided in 
     subsection (f).
       (b) Governing Law.--The substantive law for decision in an 
     action described in subsection (a)(1) shall be derived from 
     the law, including applicable choice of law principles, of 
     the State in which the act of terrorism giving rise to the 
     action occurred, except to the extent that--
       (1) the law, including choice of law principles, of another 
     State is determined to be applicable to the action by the 
     district court hearing the action; or
       (2) otherwise applicable State law (including that 
     determined under paragraph (1), is inconsistent with or 
     otherwise preempted by Federal law.
       (c) Federal Jurisdiction.--
       (1) In general.--Notwithstanding any other provision of 
     law, not later than 90 days after the date of the occurrence 
     of an act of terrorism, the Judicial Panel on Multidistrict 
     Litigation shall assign a single Federal district court to 
     conduct pretrial and trial proceedings in all pending and 
     future civil actions for claims arising out of or resulting 
     from that act of terrorism.
       (2) Selection criteria.--The Judicial Panel on 
     Multidistrict Litigation shall select and assign the district 
     court under paragraph (1) based on the convenience of the 
     parties and the just and efficient conduct of the 
     proceedings.
       (3) Jurisdiction.--The district court assigned by the 
     Judicial Panel on Multidistrict Litigation shall have 
     original and exclusive jurisdiction over all actions under 
     paragraph (1). For purposes of personal jurisdiction, the 
     district court assigned by the Judicial Panel on 
     Multidistrict Litigation shall be deemed to sit in all 
     judicial districts in the United States.
       (4) Transfer of cases filed in other federal courts.--Any 
     civil action for claims arising out of or resulting from an 
     act of terrorism that is filed in a Federal district court 
     other than the Federal district court assigned by the 
     Judicial Panel on Multidistrict Litigation under paragraph 
     (1) shall be transferred to the Federal district court so 
     assigned.
       (5) Removal of cases filed in state courts.--Any civil 
     action for claims arising out of or resulting from an act of 
     terrorism that is filed in a State court shall be removable 
     to the Federal district court assigned by the Judicial Panel 
     on Multidistrict Litigation under paragraph (1).
       (d) Approval of Settlements.--Any settlement between the 
     parties of a civil action described in this section for 
     claims arising out of or resulting from an act of terrorism 
     shall be subject to prior approval by the Secretary after 
     consultation by the Secretary with the Attorney General.
       (e) Limitation on Damages.--
       (1) In general.--Punitive or exemplary damages shall not be 
     available for any losses in any action described in 
     subsection (a)(1), including any settlement described in 
     subsection (d), except where--
       (A) punitive or exemplary damages are permitted by 
     applicable State law; and
       (B) the harm to the plaintiff was caused by a criminal act 
     or course of conduct for which the defendant was convicted 
     under Federal or State criminal law, including a conviction 
     based on a guilty pea or plea of nolo contendere.

     Conviction under subparagraph (B) shall establish liability 
     for punitive or exemplary damages resulting from the harm 
     referred to in subparagraph (B) and the assessment of such 
     damages shall be determined in a civil lawsuit.
       (2) Protection of taxpayer funds.--Any amounts awarded in, 
     or granted in settlement of, an action described in 
     subsection (a)(1) that are attributable to punitive or 
     exemplary damages allowable under paragraph (1) of this 
     subsection shall not count as insured losses for purposes of 
     this Act.
       (f) Claims Against Terrorists.--Nothing in this section 
     shall in any way be construed to limit the ability of any 
     plaintiff to seek any form of recovery from any person, 
     government, or other entity that was a participant in, or 
     aider and abettor of, any act of terrorism.
       (g) Effective Period.--This section shall apply only to 
     actions described in subsection (a)(1) arising out of or 
     resulting from acts of terrorism that occur during the 
     effective period of the Program, including any applicable 
     extension period.

[[Page S5657]]

     SEC. 11. CRIMINAL OFFENSE FOR AIDING OR FACILITATING A 
                   TERRORIST INCIDENT.

       (a) In General.--Chapter 113B of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 2339C. Aiding and facilitating a terrorist incident

       ``(a) Offense.--Whoever, acting with willful and malicious 
     disregard for the life or safety of others, by such action 
     leads to, aggravates, or is a cause of property damage, 
     personal injury, or death resulting from an act of terrorism 
     as defined in section 3 of the Terrorism Risk Insurance Act 
     of 2002 shall be subject to a fine not more than $10,000,000 
     or imprisoned not more than 15 years, or both.
       ``(b) Private Right of Action.--Any person may request the 
     Attorney General to initiate a criminal prosecution pursuant 
     to subsection (a). In the event the Attorney General refuses, 
     or fails to initiate such a criminal prosecution within 90 
     days after receiving a request, upon petition by any person, 
     the appropriate United States District Court shall appoint an 
     Assistant United States attorney pro tempore to prosecute an 
     offense described in subsection (a) if the court finds that 
     the Attorney General abused his or her discretion by failing 
     to prosecute.''.
       (b) Chapter Analysis.--The chapter analysis for chapter 
     113B of title 18, United States Code, is amended by adding at 
     the end the following:

``2399C. Aiding and facilitating a terrorist incident.'.

  Mr. SPECTER. Mr. President, last week I voted against tabling the 
McConnell amendment which would have conditioned punitive damages for 
private parties arising out of a terrorist attack to situations where 
there had been a criminal conviction establishing malicious conduct. 
Had the McConnell amendment not been tabled, I intended to offer a 
second-degree amendment which I am now discussing. Since the McConnell 
amendment was tabled, I am now calling my amendment up as a first-
degree amendment.
  This amendment establishes a crime for anyone acting with willful and 
malicious disregard for the life or safety of others, and by such 
action leads to, aggravates, or is a cause of, property damage, 
personal injury, or death resulting from an act of terrorism.
  This amendment further provides for a private right of action as 
follows: Any person may request the Attorney General to initiate a 
criminal prosecution of the criminal offense I just described. In the 
event the Attorney General refuses or fails to initiate such a criminal 
prosecution within 90 days, upon petition by any person, the 
appropriate U.S. district court shall appoint an Assistant United 
States Attorney pro tempore to prosecute the criminal offense if the 
court finds that the Attorney General abused his or her discretion by 
refusing or failing to prosecute.
  In considering legislation to provide for Federal Government 
assumption of some of the losses resulting from terrorist attacks in 
order to provide insurance coverage, there has been considerable 
sentiment to curtail punitive damages. Understandably, the bill 
precludes punitive damages against the Federal Government.
  In one sense, there is no more reason to preclude punitive damages 
against private defendants in this situation than in any other. For 
example, if a building owner chain-locked emergency exits, why should 
he or she be exempted from punitive damages because people are injured 
or killed by terrorist attack instead of by fire? Perhaps this is just 
another chapter in the continuing effort to reduce civil remedies for 
tortious conduct.
  There is another sense that everyone should make some concessions in 
dealing with terrorists. In any event, this situation presents an 
opportunity to deal in a more meaningful way with malicious conduct 
causing injury or death.
  It is my judgment that punitive damages have not been an effective 
deterrent for malicious conduct. Punitive damages are consistently 
reversed or reduced. Cases involving automobiles such as the Ford Pinto 
and the Chevrolet Malibu illustrate the practice of knowingly 
subjecting consumers to the risk of death or grievous bodily injury 
because it is cheaper to pay civil damages than to fix the deadly 
defect.
  In the case of ``Grimshaw v. Ford Motor Company,'' 119 Cal. App. 3d 
757, the driver died and a passenger suffered permanently disfiguring 
burns on his face and entire body when the Pinto's gas tank exploded in 
a rear-end collision. When attorneys got into Ford's records, it was 
disclosed that the gas tank had not been relocated to a safe place 
because the correction would cost $11 per car while the calculation for 
damages from civil suits was only $4.50.
  So it is a dollars and cents calculation.
  In the celebrated case ``Anderson v. General Motors,'' 1999 WL 
1466627, a Chevrolet Malibu fuel tank ruptured in a rear-end collision 
causing six people to sustain serious burns. The design defect of the 
gas tank was not corrected because a cost-benefit analysis showed it 
would have cost General Motors $8.59 to fix the fuel system compared to 
$2.40 to pay the civil damages. The Pinto case resulted in a punitive 
damage award in the amount of $125 million, frequently cited as an 
excessive punitive damage award. Very infrequently is it noted that the 
trial court later reduced the award to $3.5 million.

  Similarly, the Malibu verdict of $4.8 billion in punitive damages was 
reduced by the trial judge, with an appeal slashing it even more.
  Punitive damage awards have resulted in virtually endless delays. In 
one of the most celebrated punitive damage cases, ``In re the Exxon 
Valdez,'' 270 F.3d 1215, started in 1989, the Ninth Circuit vacated 
some 12 years later the previously decided, largest-in-history $5 
billion punitive damage award.
  I ask unanimous consent that the text of a memorandum be printed in 
the Record at the conclusion of my presentation. This memorandum 
details punitive damage awards which were reversed and the lengthy 
period of time, demonstrating what I am submitting is the 
ineffectiveness of punitive damages in deterring malicious conduct.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SPECTER. The principal problem with punitive damages or a 
principal problem with punitive damages, in addition to the long delays 
and the fact that the awards are reduced, is that if, at the end of the 
long litigation process punitive damages are collected, they come from 
the shareholders of the company. They come from General Motors. They 
come from Ford, or they come from some major corporation. That is why 
it has been my view that an effective deterrent would be to hold the 
individuals liable for their malicious conduct. And malicious conduct, 
as defined in this bill, is conduct which has a wanton disregard for 
the life or safety of another person.
  From my experience as district attorney of Philadelphia, I know that 
people are very concerned about going to jail, much more concerned than 
if at the end of a long litigation process there may be the requirement 
for a corporation to pay punitive damages, especially in the context 
where we know from records from Ford Motor Company in the Pinto case 
that they made a calculated decision that it was cheaper to pay the 
damages.
  Here you have an official locating a gas tank in the rear end of the 
car resulting in death, resulting in serious bodily injury again and 
again, and no deterrence, right back at it again and again.
  A similar case, ``White v. Ford Motor Company,'' CV-N-95-279-DWH 
(PHA), involved a 3-year-old child who was run over, backed over by a 
Ford truck with a defective brake. Here, again, in ``White v. Ford 
Motor Company,'' the calculation was made that it is cheaper to pay the 
damages than it is to correct the defect.
  That case resulted in a verdict of punitive damages of $150 million 
in a case tried in Reno, NV, and later reduced to $69 million. Years 
have passed and the matter is still under appeal.
  The effective way of dealing with this kind of malicious conduct is 
to provide a criminal penalty. A criminal penalty was provided in a 
case involving Firestone tires, which were mounted on Ford vehicles 
which had disclosed numerous problems in 1998 and 1999. Some 88 deaths 
resulted when these tires gave way, the vehicles rolled over. Eighty-
eight people were killed, hundreds were injured, and there was a 
calculation on the part of Ford and Firestone not to make that 
disclosure, not to file it with the appropriate Federal officials.
  An internal Ford memorandum on March 12, 1999, considered whether 
governmental officials in the United States ought to be notified and a 
decision was made not to notify Federal officials, so they could keep 
on selling

[[Page S5658]]

the Firestone tires on the Ford cars. It is one of the really great 
tragedies. I had introduced legislation to make that conduct a crime.
  With some modifications that provision was incorporated in Public Law 
106-414 on November 1, 2000, creating a 15-year sentence for officials 
where they withhold information on defective products from governmental 
regulators.
  Mr. President, in offering the amendment which I am currently 
discussing, the effort is being made to substitute an effective remedy 
which would hold corporate officials liable for the damages which they 
cause as a result of malicious conduct.
  The provisions which were offered by Senator McConnell in the 
amendment which was tabled last week required that a criminal 
conviction be established before someone would be liable for punitive 
damages, and that provision has been carried over to the amendment 
which I am offering today.
  I have added to that amendment a provision for a private right of 
action. It is very difficult on some occasions to persuade the 
prosecuting attorney to initiate a criminal prosecution. That is a 
matter which is customarily viewed as discretionary.
  The prosecutor--and I have had a lot of experience with this myself 
has many cases he has to try and may choose not to initiate the 
prosecution. So, in order to activate the provision for punitive 
damages, where someone is convicted of a crime with the requisite 
malicious conduct, my amendment provides that any person can ask the 
Attorney General of the United States to initiate a prosecution. If the 
Attorney General refuses to initiate the prosecution within 90 days, 
then the individual may petition the court for leave to be appointed as 
an Assistant United States Attorney pro tempore. In other words, on a 
private prosecution there would have to be a showing that the 
prosecuting attorney had abused his or her discretion in failing or 
refusing to initiate the prosecution. Such private actions are 
commonplace in U.S. courts.

  New York has such a procedure, Minnesota, North Dakota, Florida, 
Arkansas, Iowa, Montana, Ohio, and Oklahoma. I ask unanimous consent 
that a memorandum be printed in the Record at the conclusion of my oral 
presentation which summarizes the specifics of where private 
prosecutions have been initiated.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. SPECTER. Mr. President, I think it is worthy of note that this 
was a subject of considerable interest to this Senator during my law 
school days. I wrote a comment which appears at Yale Law Journal, 
volume 65, page 209, ``Private Prosecution: A Remedy for Unwarranted 
District Attorneys' Inaction.''
  As this package was put together, I think it offers some guidance for 
a way where there might be some relief from punitive damages; although, 
to repeat, I think they have resulted in very little by way of 
liability, for the reasons I have cited and the authorities I have 
cited.
  I believe it is true the punitive damage possibility is a factor on 
leveraging settlement, but there have been enormous objections to 
punitive damages, and they have created quite a lot of public furor, as 
one can see in the $5 billion punitive damage award I discussed 
earlier. The public thinks it is being paid with real money; whereas, 
in fact, when we trace them down, the funds are not paid.
  I think we need a comprehensive analysis. There is none to my 
knowledge as to what has resulted when punitive damages are sought, 
where punitive damages are obtained on a verdict, and what happens, how 
many of them are actually collected. It would be a good deal more 
difficult to quantify the effect of punitive damages as leverage on 
settlements, but I think that, too, would be worthy of study.
  Most importantly, the justice system ought to be able to reach people 
who are malicious. Wanton disregard for the safety of another 
constitutes malice and supports a prosecution for murder in the second 
degree, which can carry a term up to 20 years. This bill carries a 
penalty up to 15 years because in the Federal system, that is the 
equivalent of a life sentence. Following the precedent of the Ford-
Firestone matter, the 15-year penalty was provided.
  I know this amendment is subject to being stricken as being non-
germane. When the cloture motion was offered this morning, I voted in 
support of it, and it was agreed to. Sixty-five Senators voted in favor 
of it; 31 Senators voted against it. Voting in favor of the cloture 
motion, I was well aware that were it to pass, this amendment would be 
precluded, but I considered it much more important to get this bill 
moving to a conference so that we can have the Government standing 
behind certain insurance policies so we can move ahead with very 
important commercial transactions in this country which are now being 
held up.
  It may be that this format will be useful in the conference committee 
where I believe the House has stricken punitive damages.
  This may be an accommodation where punitive damages would still be 
available, but there would first have to be a criminal conviction. A 
more important part of the provision would be that those who are 
malicious and cause death or injury to other people would be held for a 
very serious criminal sanction.

                               Exhibit 1

       The prototype case for the proposition that punitive 
     damages litigation is ``virtually endless'' is In re the 
     Exxon Valdez, the latest iteration of which is found at 270 
     F.3d 1215, (9th Cir. 2001). In the 2001 decision, the 9th 
     Circuit vacated a previously-decided, largest-in-history, $5 
     billion punitive damages award, and remanded the case to the 
     District Court to determine a lower award under standards 
     specified in BMW of North America, Inc. v. Gore, 517 U.S. 559 
     (1996)(substantive due process review of punitive damage 
     awards under the three ``guideposts'' of defendant 
     reprehensibility, ratio analysis, and criminal penalties 
     comparability), and Cooper Industries, Inc. v. Leatherman 
     Tool Group, Inc., 532 U.S. 424 (2001)(requiring de novo 
     review on appeal). Thus, litigation stemming from a March 
     1989 accident/oil spill continues into its 11th year--and, 
     essentially, is back to ``square one'' on the issue of 
     punitive damages. See also Pacific Mutual Life Ins. Co. v. 
     Haslip, 499 U.S. 1 (1991)(ten-year litigation stemming from 
     insurance agent's 1981 misappropriation of insurance premium 
     payments).
       The key cases cited in Exxon Valdez, BMW of North America, 
     Inc. and Cooper Industries, Inc. themselves had lengthy 
     procedural histories--the BMW case running from 1990-1997, 
     and Cooper running from 1995 to the present. See also 2660 
     Woodley Road Joint Venture v. ITT, 2002 U.S. Dist. LEXIS 439 
     (D.Del., January 10, 2002)(granting motion for new trial on 
     the issue of the size of punitive damages awarded in a 1997 
     commercial contract breach case); Dallas v. Goldberg, 2002 
     U.S. Dist. LEXIS 8829 (SDNY, May 20, 2002)(ruling on the 
     admissibility of evidence in computing the amount of punitive 
     damages in ongoing Sec. 1983 action stemming from a 1994 
     police incident); Silivanch v. Celebrity Cruise Inc., 2000 
     U.S. Dist. LEXIS 12155 (August 23, 2000)(a procedural ruling 
     on allocation of punitive damages stemming from a 1994 cruise 
     exposure to ``Legionnaires' Disease''). State court cases are 
     at least as striking. See, e.g., Torres v. Automobile Club of 
     Southern Cal., 937 P.2d 290 (Cal. 1997)(remanding for a new 
     trial on all issues; litigation initially filed in 1986); 
     Moeller, et. al. v. American Guarantee Insurance Co., 707 So. 
     2d 1062 (Miss. 1996)(final decision in 1996 on case filed in 
     1982); Abramczyk, et. al. v. City of Southgate, 2000 Mich. 
     App. LEXIS 530 (2000)(reversing award of punitive damages and 
     remanding for new trial; litigation filed in 1996); Dixie 
     Insurance Company v. Mooneyhan, 684 So. 2d 574 (Miss. 1996) 
     (remanding for a new trial on the issue of punitive damages; 
     litigation filed in 1987).
       To summarize, then, litigation on the issue of punitive 
     damage can--and does--stretch out over a period of years 
     (numerous appellate cases show a pattern of at least 4-6 
     years and longer, as in the case of Exxon Valdez and Cooper 
     Industries). Recent trends have caused one commentator to 
     state as follows: ``The Supreme Court's . . . decision [in 
     Cooper], with its mandate of de novo appellate review of 
     punitive damages jury verdicts in all cases, may consign 
     state and federal courts to an endless round of institutional 
     second-guessing . . . .''
       Cabraser, E.J. Engle v. R.J. Reynolds Tobacco Co.: Lessons 
     in State Class Actions, Punitive Damages, and Jury Decision-
     Making Unfinished Business: Reaching the Due Process Limits 
     of Puntive Damages in Tobacco Litigation Through Unitary 
     Classwide Adjudication, 36 Wake Forest L. Rev. 979, 986 
     (2001)(emphasis added). Thus, the ``endless'' nature of 
     punitive damages litigation will--at least according to this 
     commentator (a tobacco litigation plaintiffs' attorney)--only 
     get worse.

                               Exhibit 2

       There are several states that through statute or care 
     precedent allow a court to appoint a special prosecutor in 
     the event that the district attorney is unable or unwilling 
     to prosecute a case. The following is a summary of the 
     applicable statute or case law in several states authorizing 
     the replacement of prosecutors.

[[Page S5659]]

                                statute

       New York--NY CLS County Sec. 701 provides that when a 
     district attorney cannot attend in a court in which he or she 
     is required by law to attend or is disqualified from acting 
     in a particular case, the criminal court may appoint another 
     attorney to act as special district attorney ``during the 
     absence, inability or disqualification of the district 
     attorney.''
       Pennsylvania--71 P.S. Sec. 732-205 provides that the 
     Attorney General shall have the power to prosecute in any 
     county criminal court upon the request of a district attorney 
     who lacks the resources to conduct an adequate investigation 
     or prosecution or if there is actual or apparent conflict of 
     interest. Also, the Attorney General may petition the court 
     to permit him or her to supersede the district attorney in 
     order to prosecute a criminal action if he or she can prove 
     by a preponderance of the evidence that the district attorney 
     has failed or refused to prosecute and such failure or 
     refusal constitutes an abuse of discretion.
       Minnesota--Minn. Stat. Sec. 388.12 provides that a judge 
     may appoint an attorney to act as or in the place of the 
     county attorney either before the court or the grand jury.
       North Dakota--If a judge finds that the state's attorney is 
     absent or unable to attend the state's attorney's duties, or 
     that the state's attorney has refused to perform or neglected 
     to perform any of his duties to institute a civil suit to 
     which the state or county is a party and it is necessary that 
     the state's attorney act, the judge shall (1) request that 
     the district attorney take charge or the prosecution or (2) 
     appoint an attorney to take charge of the prosecution.
       Tennessee--Tenn. Const. art. VI, Sec. 6 provides that in 
     all cases where the Attorney for any district fails or 
     refuses to attend and prosecute according to law, the Court 
     shall have power to appoint an Attorney pro tempore.


                                case law

       Florida--Taylor v. Florida, 49 Fla. 69 (1905)--The Supreme 
     Court of Florida held that absent an express legislative 
     statement prohibiting a court from doing so, in the event the 
     state attorney refuses to represent the state, that a court 
     has the inherent power to appoint another attorney.
       Arkansas--Owen v. State, 263 Ark 493 (1978)--The Supreme 
     Court of Arkansas held that ``[i]t is well settled that the 
     circuit judge had the power to appoint a special prosecuting 
     attorney.'' Various other state courts have embraced the 
     inherent power concept of a court to appoint a special 
     prosecutor in a criminal case. See White v. Polk County, 17 
     Iowa 413 (1864); Territory v. Harding, 6 Mont. (1887); State 
     v. Henderson, 123 Ohio St. 474 (1931); Hisaw v. State, 13 
     Okla. Crim. 484 (1917).

  Mr. SPECTER. I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I would like to note for the record two 
previous statements I made on this subject, one on September 7, 2000, 
appearing in the Congressional Record beginning at page S-8188, and 
also a statement on September 15, 2000, appearing in the Congressional 
Record on page S-8625. I would note that my statement of September 7, 
2000, provides some more detailed facts concerning the Ford-Firestone 
issue and discusses several other cases involving punitive damages.
  I note one other consideration, and that is, I am aware that in 
subscribing to the requirement that there is a criminal prosecution as 
a basis for an award of punitive damages, that does require proof 
beyond a reasonable doubt. On punitive damages, there have been varying 
standards applied, for example, clear and convincing evidence. And 
while proof beyond a reasonable doubt is obviously more than a 
preponderance of the evidence, it is my view that where you deal with 
these horrendous kinds of cases--the Pinto, where there is a 
calculation regarding the gas tank in the rear of the car, or the Ford-
Firestone case--in these kinds of cases where we are really looking to 
make an example, that the proof will be there for proof beyond a 
reasonable doubt.
  Having had some considerable experience prosecuting criminal cases, 
it has been my view that in most situations the vagaries of burdens of 
proof--beyond a reasonable doubt, clear and convincing evidence, 
preponderance of the evidence--really are not the ultimate 
determinants. But to the extent that proof beyond a reasonable doubt is 
an additional burden, I think the gain in moving in this direction to 
impose criminal liability is certainly worth it from the point of view 
of public policy.

  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. LANDRIEU. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded and that I be recognized as in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________