| Abstract: |
The common law torts system generally governs the way private harms are addressed throughout the United States. But there is a notable exception when governments decide to oust or limit common law tort remedies for certain kinds of conduct. Examples are many, including state and federal legislation proposed or implemented during the COVID-19 pandemic to shield industries from liability; federal legislation shielding airlines from liability arising from the 9/11 attacks; federal legislation shielding gun manufacturers from claims stemming from violent crime; federal legislation granting immunity to social media platforms for harm from materials posted by third parties; and state workers' compensation programs shielding employers from liability for harms in the workplace. This article does not specifically question the power of governments to override or preempt private law obligations; it assumes that the power exists. Instead, drawing from the examples above, the article explores from a policy perspective the competing interests involved in the exercise of that power--both the interests served and disserved by granting liability immunity. Given the important consequences of how this balance is struck, this article proposes a roadmap of factors and findings that governments should weigh before granting immunity to private industry. Without a general framework, the governmental process may appear to be--and may in fact be--arbitrary or the result of political favoritism and regulatory capture. When torts are removed, the significant values promoted by the common law, such as deterrence, redress, and exposure of substandard behavior, may be undermined and citizens may lose their confidence in the government's ability to protect them from harm. To justify that result, the interests advanced by granting immunity should be sufficiently compelling. Consequently, the decision-making framework includes four main areas of inquiry: 1) identifying the public interest served by protecting the industry from tort liability; 2) determining the reasonably anticipated threats to the industry from liability exposure, including the likelihood of successful lawsuits; 3) examining the likely impact of immunity on tort policies, particularly with regard to the accountability, deterrence, and compensation functions traditionally provided by torts; and 4) assuming that some immunity is warranted, tailoring immunity to minimize interference with tort policies. [ABSTRACT FROM AUTHOR] |
