America's modern passenger rail system was born from a bargain between the federal government and the private railroad industry: The government would relieve the private railroads of their responsibility to provide passenger rail services, and in exchange, those companies would give preference to passenger-carrying Amtrak trains on their tracks. This was codified in federal statute. Yet, almost fifty years later, this preference is unenforced, Amtrak trains are routinely sidelined in favor of freight trains, and Amtrak struggles with on-time performance and financial sustainability. Even modest improvements in the percentage of passenger trains arriving on time would result in substantial savings for Amtrak and boost consumer confidence, yet since Amtrak's creation, the Department of Justice has filed only one enforcement action claiming violation of the corporation's passenger-preference rights. This Article will review the history of the Amtrak passenger preference and examine Amtrak's options, including DOJ enforcement, the recent shift to the Surface Transportation Board, and Amtrak's request that Congress grant it independent enforcement authority. Given the current ecosystem of federal litigating authority and Amtrak's particular needs, the Article will conclude that Congress should give Amtrak a private right of action to enforce its passenger preference.
Amtrak: The Failure of Passenger Preference and Politics of Nonenforcement,
Loy. U. Chi. L. J.
Available at: https://lawecommons.luc.edu/luclj/vol53/iss3/5