Cite as: 512 U. S. 532 (1994)
Ginsburg, J., dissenting
of potential FELA plaintiffs, however, is hardly "infinite." The statute does not govern the public at large. Only persons "suffering injury . . . while employed" by a railroad may recover under the FELA, and to do so, the complainant must show that the injury resulted from the railroad's negligence. 45 U. S. C. § 51. The Court expresses concern that the approach Gottshall and Carlisle advocate would require "[j]udges . . . to make highly subjective determinations concerning the authenticity of claims for emotional injury, which are far less susceptible to objective medical proof than are their physical counterparts." Ante, at 552. One solution to this problem—a solution the Court does not explore—would be to require such "objective medical proof" and to exclude, as too insubstantial to count as "injury," claims lacking this proof.
IV
While recognizing today that emotional distress may qualify as an "injury" compensable under the FELA, the Court rejects the Court of Appeals' thoughtfully developed and comprehensively explained approach as "inconsistent with the principles embodied in the statute and with relevant common-law doctrine." Ante, at 535. The Court's formulation, requiring consistency with both the FELA and "common-law doctrine," is odd, for there is no unitary common law governing claims for negligent infliction of emotional distress.4 The "common law" of emotional distress
4 Throughout its opinion, the Court invokes "the common law" in the singular. See, e. g., ante, at 551 ("The common law must inform the availability of a right to recover under FELA"); ante, at 552 ("The common law consistently has sought to place limits on . . . potential liability"); ante, at 554 ("[T]he common law in 1908 did not allow [prejudgment] interest"); ante, at 557 ("[T]he common law restricts recovery"); ante, at 558 ("Carlisle's . . . claim plainly does not fall within the common law's conception of the zone of danger"). But see Southern Pacific Co. v. Jensen, 244 U. S. 205, 222 (1917) (Holmes, J., dissenting) ("The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified . . . . It always is the law of some State . . . .").
571
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