Removing Torts – Harvard Journal on Legislation

Betsy J. Grey [*] View PDF

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.

I. Introduction

Torts dominate our system for addressing private harms in society, but the tort system has been under attack for decades. Critics portray the system as out of control, exploited by greedy plaintiffs who win excessive judgments that stymie industry. These attacks typically assume that market forces or regulation, without the specter of tort liability, will suffice to maintain sufficient standards of industry safety.

The attacks have had a good measure of success, inspiring federal and state legislation that immunizes a waterfront of industries from tort liability. Some of these protections have been temporary and targeted in response to specific emergencies, such as the recent measures enacted by Congress and the states to protect healthcare and other industries involved in the COVID-19 pandemic response. Likewise, in the wake of the 9/11 terrorist attacks, Congress quickly enacted legislation to shield the airline industry from tort exposure. Other immunity protections have no time limits, such as Congress’s grant of immunity to gun manufacturers for personal injury claims stemming from violent crime and to social media platforms for harms from third-party-posted material. Perhaps most notable among these permanent liability shields are the state workers’ compensation programs that protect employers from tort liability for workplace harms. Drawing from these examples, this article examines the competing interests affected by the decision to grant tort immunity.

Tort law shifts the cost of injury from the injured to the injury-creator. Imposing this shift through tort liability pursues several values. It seeks to correct an unjust imbalance between the injured and the injury-creator and return the injured to the status quo ante through compensation. And it seeks to implement a fundamental premise of torts that liability will expose and deter substandard behavior. Removing or limiting the risk of liability through tort shields can compromise these values: it may encourage negligent behavior, fail to expose substandard behavior, forfeit adequate redress for harm, and undermine the trust and safety of victims. So too, whenever government grants immunity, it inevitably picks economic winners (those industries that receive immunity) and losers (those that don’t and continue to face potential tort liability). This choice puts government’s thumb on free market forces.

At the same time, governments have compelling interests, particularly in effectively promoting public safety and economic growth, which may be advanced by overriding tort liability in certain circumstances. Choosing to do so raises significant questions. How should governments strike the balance between promoting the societal benefits provided by granting immunity and the individual and societal benefits of torts? When should certain public interests displace other interests promoted by the tort system?

The answer to these questions requires a decision-making framework. Articulating and applying a consistent set of factors that accounts for both the public and private interests at stake is necessary to minimize the likelihood that tort immunity is simply the result of which industry holds the most lobbying power or based on assumptions that are not evidence-based. 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. A short-sighted decision-making process may result in decisions that are counterproductive or anti-democratic by cutting off access to the tort system and the norms it promotes. Citizens consequently may lose their confidence in the government’s ability to protect them from harm. For these reasons, this article proposes factors that governments should make specific findings about and balance before granting immunity to private industry. 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.

Scholars have spilled much ink on the value of granting businesses immunity from tort liability, especially in the context of tort reform.¹ Other scholars examine tort immunity from the viewpoint of government’s constitutional power to do so.² Some scholars argue that tort liability impedes the development and implementation of new products and technologies because of unmanageable uncertainties about liability risks.³ This article asks a different question. It assumes that state and federal governments have the power to shield businesses from tort liability and the exercise of that power may be warranted. But when that power is exercised, legislatures eliminate both the ability of victims to seek recourse from the tort system for harms suffered and the benefits of the regulatory function of torts. Such an extreme action demands a more thoughtful adjustment of the tort system via a concrete factor analysis. This article asks how governments can avoid inconsistent or unwarranted decision-making in exercising their power to remove torts. In proposing a decision-making framework, it argues for a presumption against granting tort immunity and identifies the factors and functional considerations to evaluate before granting immunity.

Part II briefly overviews examples of government interference with private tort remedies, focusing on the examples noted above. These examples vary in their breadth, settings, and goals: they address fostering specific industries as well as more systemic concerns stemming from public emergencies or compensation for workplace injuries. Some aim to act preemptively, while most act in response to an event or growing problem. Some of the examples provide alternative compensation schemes, but most do not. With these examples as the backdrop, Part III explores the impact on common law rights and remedies when tort displacement occurs. Certain values and incentives provided by the tort system, such as deterrence, oversight, transparency, and compensation, may be compromised or lost when a government exercises its power to eliminate tort remedies. Federalism principles may also counsel a strong reluctance to displace state tort remedies to avoid undermining the fundamental state interests in protecting the health and safety of its citizenry and redressing injuries. These values support the view that providing tort remedies is the default system, and removing torts is the exception. But these values must be balanced against the public needs addressed by displacing private tort remedies. Part IV therefore proposes guidelines for when the government should or should not invoke its powers to suspend private law remedies, which require fact-finding and the balancing of factors to determine which approach best serves the public interest. In this way, the article seeks to find a pathway that recognizes the benefits that both immunity shields and torts have to offer.

II. Government Displacement of Private Law Remedies

Historically, both state and federal governments have interfered with private tort law remedies, which Heidi Li Feldman refers to as “eliminative” tort doctrines.⁴ The interferences have occurred in a variety of contexts, typically involving a public emergency or a product or service perceived as critical to the common good.⁵ Often these interferences, which “limit[] an entity’s exposure to litigation and liability,” are intended to “allow[] that entity to devote its time and resources to socially beneficial endeavors.”⁶ The interferences may also stem from a governmental decision to foster certain fledgling industries.⁷ These measures can completely or partially restrict access to common law tort remedies.⁸ This part briefly overviews five examples of governments intervening to reduce or remove the availability of state tort remedies for specific industries or defendants. These examples demonstrate the divergent legislative approaches to side-stepping tort remedies in different settings, driven by varying motivations for the displacements. The displacements have proven generally successful on their own terms—avoiding or reducing liability for particular industries or parties—although the need for and costs of intervention have been more difficult to measure.

A. Pandemic Liability Protections

Pandemic liability protections fell into two large buckets: protection for healthcare and non-healthcare industries. The COVID-19 pandemic triggered a public health emergency that brought health workers and vaccine manufacturers to the forefront, both in terms of addressing public health needs and facing greater exposure to liability. In response, both federal and state governments acted swiftly to provide broad liability protections to healthcare workers and vaccine manufacturers.⁹ At the same time, some non-healthcare businesses were shuttered either by state action or by consumer and employee responses to the crisis. To encourage those businesses to resume normal business activities, some states provided liability protection from personal injury suits related to the virus.¹⁰

The main focus of COVID-19 related immunity protections was the healthcare industry. The federal government and some states had laws predating the pandemic that addressed liability protections for the healthcare industry during a public health emergency, reflecting the strong public interest in marshalling health care resources quickly during such emergencies. Two federal laws, the Public Readiness and Emergency Preparedness Act (“PREP Act”)¹¹ and the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”)¹² invoked liability protection for healthcare workers during the pandemic. The federal government originally enacted the PREP Act in 2005 to grant liability protections for healthcare workers in public health emergencies, and the Secretary of Health and Human Services (HHS) extended it to COVID-19 in 2020.¹³ The purpose of granting immunity was to avoid the constraints that may occur with liability exposure. As one case opinion described, “Its evident purpose is to embolden caregivers, permitting them to administer certain encouraged forms of care (listed COVID ‘countermeasures’) with the assurance that they will not face liability for having done so.”¹⁴ Built into the PREP Act is the Countermeasures Injury Compensation Program, which offers some limited compensation for medical expenses, lost wages, and death benefits.¹⁵

The federal government enacted the CARES Act to shield healthcare professionals who volunteered during the COVID-19 emergency from liability, to encourage professionals to volunteer.¹⁶ Additionally, the Secretary of HHS urged state governors to provide liability immunity to healthcare professionals for medical malpractice.¹⁷ The CARES Act also provided $2 trillion in economic stimulus money for industries and individuals during the pandemic,¹⁸ which was intended to “build faith in an economic rebound.”¹⁹

Several states also had statutes predating the COVID-19 pandemic that protect healthcare providers from liability during public health emergencies.²⁰ These statutes generally protect against liability for physical injury or property damage unless the healthcare worker’s conduct constitutes gross negligence or willful misconduct.²¹ During the pandemic, other states passed similar liability shields for healthcare workers.²²

Outside of the healthcare industry, states adopted liability shields focused on protecting the economic interests of businesses that could be affected by COVID-19. Thirty states enacted shields in 2020 and 2021 to immunize businesses from lawsuits that blamed them for a person’s COVID-19 exposure, injury, or death.²³ A major goal of these statutes was to induce businesses to reopen without fear of litigation.²⁴ These statutes essentially eliminated negligence law for COVID-19 sufferers without offering a replacement or alternative way for the injured to obtain redress for negligent exposure of the virus.²⁵ Although legislatures did not substantially investigate the need for the liability shields, they were probably unnecessary because liability claims were unlikely to prevail given the challenge of proving causality.²⁶ In addition, state workers’ compensation laws generally shield businesses from claims of injury or exposure to illness that occurs in the workplace, including COVID-19,²⁷ although a few states created exceptions to allow COVID-19 exposure claims to proceed.²⁸

In one of the most sweeping drives for executing immunity on the federal level, then-Senate Majority Leader Mitch McConnell sought a nationwide liability shield law, the Safe to Work Act, which would have explicitly preempted state tort law for personal injury claims arising from COVID-19.²⁹ Its explicit purpose was economic protection. As stated in its findings, “Individuals and entities potentially subject to coronavirus-related liability will structure their decisionmaking to avoid that liability. [Various businesses and institutions] may decline to reopen because of the risk of litigation.”³⁰ Accordingly, the proposed Act’s purpose was to “ensure that the Nation’s recovery from the coronavirus economic crisis is not burdened or slowed by the substantial risk of litigation.”³¹ These proposed protections garnered significant opposition from congressional Democrats, labor unions, and other groups and ultimately did not pass.³² Some argued that these liability shields were really just a decoy to enact tort reform at the federal level.³³

B. Limits on Airline Tort Liability Post-9/11

In the aftermath of the September 11, 2001 terrorist attacks, and faced with looming economic uncertainty and fears over bankruptcy, the airline industry lobbied intensely for help from the federal government, arguing that liability would crush a critical industry.³⁴ Eleven days after the attacks, Congress passed the Air Transportation Safety and System Stabilization Act (“ATSSSA”) to aid airline carriers and compensate victims of the attacks.³⁵ In addition to creating a $5 billion bailout in direct relief for airline carriers,³⁶ ATSSSA capped the recovery amount in all tort liability lawsuits at the airlines’ existing liability insurance limits.³⁷ American Airlines and United Airlines (whose planes were brought down by the terrorists) each carried approximately $1.5 billion in liability insurance.³⁸

The Act was explicitly designed to ensure the airline industry remained competitive. The full title of ATSSSA includes its purpose: “An Act to preserve the continued viability of the United States air transportation system.”³⁹ It was clear that Congress was concerned about protecting from liability costs an industry deemed critical to the economic well-being of the nation. As Representative Thomas Reynolds stated:

We must remember that this is not just an industry giant that is suffering. This is a critical component to our way of life and a vital segment of our national economy. Our airlines move people and products across America and throughout the world. They serve not just business and tourism, but can, quite literally, determine whether we are able to compete in a global economy.⁴⁰

These assertions and conclusions were taken at face-value, without any real investigation or fact-finding on the impact of tort liability on the industry. Consideration of other alternatives, like bankruptcy, did not come into play.⁴¹

Given the significant magnitude of the injuries and the limited insurance funds available, Congress established the September 11th Victim Compensation Fund of 2001 (“VCF”) as an alternative to litigation for victims.⁴² By filing a claim through the VCF, claimants waived their right to file, or be a party to, a civil lawsuit for damages sustained from the attack.⁴³ While the VCF created an avenue for injured parties to bypass the daunting court system, and still obtain compensation, the prohibition on double-dipping also created a dilemma in choosing between legislative and judicial relief.

Congress rejected several elements of the traditional torts system in designing the VCF. It promoted a speedier adjudication of claims and discouraged the filing of tort claims,⁴⁴ while eliminating any consideration of legal responsibility from the equation.⁴⁵

Nevertheless, the program’s structure incorporated some but not all elements of the tort system with regard to damages.⁴⁶ A notable drawback of the VCF, as acknowledged by its Special Master Kenneth Feinberg, included these conflicting theories of damage awards.⁴⁷ On the one hand, the program followed the traditional tort equitable distribution model, which considers income levels in the compensation calculus, resulting in a maximum award of $7.1 million.⁴⁸ On the other hand, although the program did not establish a formal damage limit, Special Master Feinberg imposed a baseline payment of $250,000 for all claims⁴⁹ and an informal cap to promote equality and prevent excessive favoring of the wealthy over the financially disadvantaged.⁵⁰

Despite this drawback, the program largely proved to be an efficient compensation mechanism that circumvented the tort system. Ninety-seven percent of those eligible to file a claim ultimately did so by the program’s deadline.⁵¹ Fewer than ninety people brought tort lawsuits against the airlines and other defendants seeking compensation higher than would be awarded under the VCF or attempting to establish responsibility for the attacks.⁵²

Once the lawmakers had largely removed the private tort remedy, they also removed a significant avenue for investigating the causes of the attacks. Subsequently, President George W. Bush and Congress established the National Commission on Terrorist Attacks Upon the United States (“9/11 Commission”) on November 27, 2002.⁵³ Along with preparing a full account of the circumstances surrounding the attacks, including preparedness for and the immediate response to the attacks, the Commission provided recommendations designed to guard against future attacks.⁵⁴ The 9/11 Commission Report, issued in July 2004, made forty-one recommendations to improve national security, but did not specifically address the failures of the airline industry.⁵⁵ In response, Congress adopted most of the Commission’s proposals in several pieces of legislation.⁵⁶ However, some of the Commission’s proposals remain unaddressed by Congress, such as calls to reorganize congressional oversight of intelligence and homeland security policy.⁵⁷

C. Gun Manufacturer Liability

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (“PLCAA”), legislation intended to curtail civil liability actions against firearm manufacturers resulting from the misuse of their products by others.⁵⁸ This liability shield is unique in that the gun industry was not considered a critical industry like the healthcare industry during a public emergency or the airline industry facing overwhelming civil liability after terrorist attacks. Further, the shield is permanent, rather than a temporary measure aimed at a specific condition or incident.

The PLCAA was enacted following an uptick in lawsuits against manufacturers brought by individual victims of gun violence and by municipalities with a prevalence of gun violence, including lawsuits based on novel causes of action such as negligent marketing or public nuisance.⁵⁹ With heavy lobbying by the National Rifle Association (“NRA”),⁶⁰ the advocates of immunity argued that the lawsuits were creating a “crisis” that threatened the economic viability of the gun industry.⁶¹ Opponents argued that the “tidal wave of litigation” was exaggerated in both number and impact of the lawsuits.⁶² The PLCAA became central to the gun control debate. Its proponents raised the specter of frivolous and costly lawsuits that would hold the law-abiding industry responsible for the acts of criminals, while its opponents argued that the PLCAA was merely an effort by the gun lobby to become the only business “exempt from longstanding principles of negligence, nuisance and product liability.”⁶³

Ultimately, Congress passed the PLCAA based on the view that it was unfair and socially harmful to hold gun manufacturers responsible for the actions of third parties under any circumstances. As the statute stated, it was premised on the belief that imposing liability on gun manufacturers for harm caused by others amounts to

an abuse of the legal system, erodes public confidence in our Nation’s laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.⁶⁴

In addition to these general purposes, the legislation even addressed specific causes of action, such as public nuisance and negligent marketing claims, stating that these liability actions “are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law.”⁶⁵ Thus, the statute was predicated on the sense that the lawsuits against the gun industry were not legitimate and stretched existing legal rights and doctrines.

The statute explicitly emphasizes the need to preserve access to guns in the face of these lawsuits: its purpose is “[t]o preserve a citizen’s access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting”⁶⁶ and to “prohibit causes of action against manufacturers . . . of firearms or ammunition products . . . for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.”⁶⁷

Congress also considered another factor in passing the statutes—that guns were extensively regulated and therefore tort liability was not critical to ensure gun safety. As Congress stated, “The manufacture, importation, possession, sale, and use of firearms and ammunition in the United States are heavily regulated by Federal, State, and local laws.”⁶⁸

Immunity under the PLCAA is limited rather than absolute. It contains six exceptions to the liability immunity,⁶⁹ but plaintiffs generally have had success with only one of them—the so-called “predicate exception.”⁷⁰ That exception permits claims against gun manufacturers or sellers who have knowingly violated an underlying state or federal law (a “predicate statute”) aimed at preventing criminals from obtaining guns.⁷¹ To prevail on such a claim, the plaintiff must plead and prove that the defendant has both committed a tort and violated the underlying predicate statute.⁷² Courts have diverged on whether the predicate statute must specifically target the gun industry, or whether it may have more general application.⁷³

D. Workers’ Compensation Laws

In perhaps the most extensive use of liability shields, state governments, as a result of criticism that the tort system was inadequately compensating victims injured in the workplace, started to replace tort liability with no-fault workers’ compensation schemes for occupational injuries in the early 1900s.⁷⁴ This liability immunity was unusual for a number of reasons. Unlike the previous examples of healthcare, airline, and gun-manufacturer liability shields, it is not industry-specific. Furthermore, both workers and employers advocated for the deployment of these schemes: “workers because of dissatisfaction with the uncertainty and delays associated with efforts to recover compensation for workplace injuries via negligence suits against employers . . . and employers because of frustration over the uncertainty and variability of jury awards for successful negligence claims by injured workers.”⁷⁵

As it turns out, these no-fault workers’ compensation schemes present a double-edged sword for injured workers. They generally relieve workers of proving fault on the part of their employer and allow them to receive compensation for on-the-job injuries.⁷⁶ But in precluding tort liability, these mandatory schemes prevent workers from recovering the full panoply of common-law damages, including non-economic damages.⁷⁷ Over time, these differences have become more significant. Under this administrative scheme, payments are typically lower and minimize burdens on employers.⁷⁸ Thus, the replacement compensation scheme does not match the compensatory benefits of tort suits. Nor does it result in a finding of fault by the employer, largely removing the transparency and deterrent effects of the tort system.⁷⁹

E. Online Platforms

Internet service providers are granted immunity protections from tort liability for content that users post on their platforms under Section 230 of the Communications Decency Act of 1996 (“CDA”).⁸⁰ Here, unlike the previous examples of immunity shields, Congress was acting preemptively. Introduced during the internet’s infancy, Section 230 directly responded to a court decision finding that an internet service provider could be held liable for defamatory statements made by third parties if the provider rendered publisher-level control over its bulletin boards.⁸¹ Fearful that the decision created a disincentive for internet service providers to regulate harmful information being posted on their sites, Congress amended the CDA to state that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”⁸² Section 230 also allows those services to “restrict access” to any content they deem objectionable without fear of liability, but it does not require that they remove anything, and it protects them from liability if they choose not to do so.⁸³

Thus, Congress sought to encourage internet service providers to exercise protective control over the harmful postings on their sites by granting them immunity. While Section 230 immunizes online platforms from legal liability for the posts, comments, and other messages contributed by their users, it does not immunize them from liability for content that violates federal criminal law or intellectual property rights.⁸⁴ Some courts have interpreted the immunity protections of Section 230 broadly,⁸⁵ while other courts read the text of Section 230 more narrowly.⁸⁶

On one hand, the benefits of Section 230 immunity are significant. The internet provides extraordinary access to information, education, cultural development, and intellectual activity, which Congress sought to protect and promote in the CDA.⁸⁷ There is a generally acknowledged need to protect online discussion on social media sites.⁸⁸ In enacting Section 230, Congress has recognized that social-media platforms provide a space for users to exchange ideas and information, which our society has a strong interest in maintaining, and facilitate innovation.⁸⁹

On the other hand, society has a strong interest in encouraging platforms to police their sites for socially harmful content.⁹⁰ Although some advocates of Section 230 argued that marketplace incentives would sufficiently encourage social media companies to police their platforms because of the economic self-interest in protecting their valuable brands,⁹¹ critics have argued that Congress significantly underestimated the cost and scope of the harm that social media posts can cause.⁹² By granting platforms complete immunity from tort liability for the content that their users post, Congress reduced their incentives to remove harmful content proactively. When third parties post negative, harmful, and defamatory content, the individuals harmed cannot bring a tort claim against the provider for facilitating the dissemination of the harmful information. This can leave the harmed individual without legal recourse since the party who posted the information is often untraceable or jurisdictionally unreachable.⁹³

There is a growing movement to modify the immunity granted in Section 230.⁹⁴ Facebook’s Mark Zuckerberg testified to Congress that he “welcome[s] the opportunity to discuss internet regulation” and that Facebook “would benefit from clearer guidance from elected officials.”⁹⁵ Congressman Christopher Cox, a co-author of Section 230, has called for modifying Section 230 because “the original purpose of this law was to help clean up the Internet, not to facilitate people doing bad things.”⁹⁶ Other countries have made various attempts at reform.⁹⁷

III. Balancing the Costs and Benefits of Removing Common Law Tort Remedies

As these examples demonstrate, lawmakers at both the state and federal level have granted partial or complete immunity from tort liability to businesses in a wide range of areas.⁹⁸ The shields target a variety of goals, ranging from economic protection of a particular industry to the delivery of healthcare services during a public health emergency. Regardless of motivation, lawmakers typically cite as a justification for immunity the potentially detrimental impact of tort liability on the business involved. But there is another side to the coin: the negative impact of immunity on the interests served by the tort system. That impact must also be considered, especially given the weighty policy considerations that have made the tort system such a central part of our legal fabric. Legislatures should make a consistent set of evidence-based findings and apply the principle of balancing before ousting tort remedies. This approach will force scrutiny of appropriate considerations to reduce the appearance of industry capture, promote protection of the integrity of the tort system and its functions, uphold federalism principles, and ensure that governments make informed decisions that create the correct incentives and normative outcomes.

The need to balance the interests at stake before displacing otherwise available remedies is not new. A prime example is the Supreme Court’s approach to qualified immunity for federal employees and officials sued for constitutional violations. In Harlow v. Fitzgerald,⁹⁹ the Court determined that qualified immunity is the proper defense for executive branch officials and that qualified immunity must strike a delicate balance of competing interests.¹⁰⁰ In striking this balance, the first concern is that individuals may suffer constitutional deprivations at the hands of government officials.¹⁰¹ This factor is very significant: “In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees.”¹⁰² This factor must be offset against the competing interest that “it cannot be disputed seriously that claims frequently run against the innocent as well as the guilty – at a cost not only to the defendant officials, but to society as a whole.¹⁰³ The Court described the countervailing costs: “These social costs include the expenses of litigation, the diversion of official energy from pressing public issues and the deterrence of able citizens from acceptance of public office.”¹⁰⁴ The Court found that qualified immunity lowers the risk of officials being overly cautious in the exercise of their duties, and excessive reluctance of government agents to act is a danger to society.¹⁰⁵ Thus, the Court held that these actors are immune from personal liability as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”¹⁰⁶ In sum, in deciding whether to allow this qualified immunity, the Harlow Court stressed the importance of balancing the need to provide a sufficient remedy for violations of law against the need to prevent the social costs of suits against the government employees.¹⁰⁷

To be sure, Harlow addresses judicial—not legislative—grants of immunity, and it does so in the context of judging the liability of government—not private—actors. But its balancing analysis remains a useful model in this context as well. The Court recognized that immunity comes with significant societal costs. That is why it held that immunity for high-level government officials should be qualified and not absolute. And it provides the question this article addresses: if absolute immunity disserves public policy for leading government officials, shouldn’t legislatures think twice before extending absolute immunity to private industry? Borrowing the balancing test from Harlow, this Part examines the benefits of providing a civil remedy for tort claims against the social costs of exposing certain private actors to tort liability.¹⁰⁸ It first outlines the values and functions served by the tort system, as well as the federalism concerns raised by displacing tort remedies. It then turns to the interests advanced by immunity measures. In the following Part, this article proposes factors that legislatures should consistently examine in weighing these competing considerations before granting immunity.

A. Framing the Functions and Goals of Tort Law

Tort law involves “the violation of a norm of conduct.”¹⁰⁹ Scholars differ about the framing and goals of tort law, but several strong themes emerge. Among the many variations in tort theories,¹¹⁰ the most commonly discussed involve corrective justice and social utility.¹¹¹

Corrective justice is a rights-based theory.¹¹² Under this view, tort law seeks to right the wrongs done by a particular defendant to a specific plaintiff. Holding defendants liable for the harms they wrongfully caused is warranted because wrongdoers should bear the costs they impose on others.

The social utility theory of tort law looks more broadly to the social benefits involved in imposing liability.¹¹³ This theory primarily seeks to provide a system of rules that furthers the common good and resolves disputes efficiently.¹¹⁴ In seeking these solutions, this view considers the possibility of redistributing costs of liability or the impact of insurance.¹¹⁵

The classic goals of tort law under either theory include providing redress, preventing harm, and furthering accountability.¹¹⁶ The tort system provides injured parties the legal rights to force the wrongdoer to provide redress for the injury. The “make-whole” requirement—that the injurer should restore the injured party back to the pre-injury position—is fundamental to American tort law.¹¹⁷ Requiring defendants to provide compensation is just because of the wrong committed by the defendants.¹¹⁸ Requiring defendants to pay compensation also advances social utility, because the economic costs of injury otherwise may be passed onto society.¹¹⁹

Harm prevention is a significant policy goal of tort law.¹²⁰ The system functions as a deterrent to others from engaging in similar wrongful conduct. This regulatory function of torts is often associated with the law-and-economics movement that started in the 1960s and 1970s,¹²¹ although its roots in the common law are much deeper than that, including the classic cost-benefit analysis to determine negligence found in Judge Learned Hand’s famous BPL formula.¹²² A central interpretation of this view draws from Judge Guido Calabresi’s “cheapest cost avoider” theory,¹²³ which reasons that liability should lie with the defendant that is in the best position to reduce accidents and the costs of accidents.¹²⁴ Imposing liability should achieve an efficient solution to the problem of accidents in society. As Judge Richard Posner stated, “[T]he dominant function of the fault system is to generate rules of liability that if followed will bring about, at least approximately, the efficient—the cost-justified—level of accidents and safety.”¹²⁵ In this way, tort law establishes the acceptable level of risk in society.¹²⁶

Aside from these two main views of tort law, other scholars see the primary basis of tort law as providing a system that empowers plaintiffs to bring lawsuits against wrongdoers. Professors John Goldberg and Benjamin Zipursky are leading theorists of the “civil recourse theory.”¹²⁷ This theory recognizes that people have substantive legal rights against mistreatment which give rise to the legal power to obtain redress,¹²⁸ but the tort system is “not fundamentally about a state or a sovereign commanding people to behave the way it wants them to behave so that it can achieve its purposes.”¹²⁹ Instead, it is “a formalized version of informal, everyday practices of people holding themselves and each other [accountable].”¹³⁰ Under this view, tort law promotes the recognition of rights “rather than . . . the pursuit of community welfare goals.”¹³¹ The holders of these rights are entitled to the court’s assistance in ensuring that the wrongdoer redresses the wrong.¹³² Goldberg and Zipursky argue that a forum for publicly airing wrongs is vital to a democratic society. Although the civil recourse theory has some detractors,¹³³ “the mechanism of right and remedy between injured and injurer is a key component of tort law.”¹³⁴

All of these theories recognize the significant benefits tort law extends to both wronged individuals and to society at large drawing from its redress, deterrence, and accountability functions. Several other critical social benefits are attributed to tort litigation. Most prominent is the function of transparency, stemming from information production. As Alexandra Lahav explains, “[L]itigation promotes transparency by forcing information out into the open that would otherwise remain hidden.”¹³⁵ This benefit furthers accountability and enhances the democratic function of the courts.¹³⁶ Relatedly, the availability of tort remedies contributes to the sense of vindication and retribution typically gained through litigation.¹³⁷ These attributes help build confidence in the safety of products and services.

Still another significant benefit of tort litigation is that it fills in the gaps of government regulation.¹³⁸ Along with the common law tort system, positive law (statutes and regulations) may also address conduct that falls below some standard. Like tort law, the regulatory system serves to prevent injury and discourage harmful behavior. Agencies such as the federal Food and Drug Administration can issue regulations that set standards of conduct that can be enforced through fines or sanctions.¹³⁹ Historically, the tort and regulatory systems have operated in tandem, although common law operates ex post and positive law traditionally operates ex ante. But it is well-recognized that our regulatory agency systems are not completely comprehensive, and the tort system serves to fill in the gaps left by scarce resources or lack of expertise.¹⁴⁰ As Matthew Shapiro explains, private enforcement through civil litigation is necessary “because the United States has a weaker administrative state than many other Western liberal democracies and so must rely more heavily on private lawsuits to implement governmental regulatory policy.”¹⁴¹

B. The Strong State Interest in Torts

In examining legislative displacement of state tort law, this article assumes the power to do so exists and focuses on whether the exercise of that power is sound as a matter of policy. Both the federal and state constitutions and laws counsel a strong reluctance to displace state tort remedies.¹⁴² Federalism principles would suggest caution to avoid undermining the fundamental state interests in protecting the health and safety of their citizenry and redressing injuries. At the same time, statutes and constitutional provisions reflect the democratic will of state citizenry in providing redress for particular private wrongs.¹⁴³

Much has been written on the values of federalism in our system of government.¹⁴⁴ Traditionally, the Supreme Court cites three main values of federalism: (1) it provides a check against the overreach of the federal government; (2) it fosters governments that can tailor policies to local needs; and (3) it uses the states as laboratories to develop new approaches to social problems.¹⁴⁵ Modern theorists support these values in various ways, but, fundamentally, all the theories make one basic assumption: states have diverging and distinct views on the issue involved.¹⁴⁶ I have argued elsewhere that this assumption holds true in the area of torts.¹⁴⁷ This diversity of views represents democracy at work.¹⁴⁸

Although federalism decisions do not entirely sanctify certain areas of state regulation, they do consider whether federal regulations affect areas of local concern traditionally regulated by the states. Traditionally, these “local matters” include family, criminal, and property law.¹⁴⁹ Tort law is also arguably worthy of special protection as an area like criminal law, that reflects the customary practices of the community and entails an exercise of state police powers to protect the health and safety of its citizens.¹⁵⁰

State statutes and constitutional provisions reinforce the strong state interest in protecting the common law of torts. Every state chose to affirmatively create and protect common law tort actions at their founding.¹⁵¹ Often, this occurred in the form of a statute that states passed to “receive” the common law.¹⁵² In the mid-1800s, for example, the Territory of Arizona passed a “reception statute.”¹⁵³ At the time of statehood in 1912, Arizona preserved the reception statute, embracing both the common law and common-law methodology.¹⁵⁴

Also at the time of statehood and continuing to this day, the Arizona constitution’s “anti-abrogation” clause preserved common law tort remedies.¹⁵⁵ Arizona courts vary in their interpretation, but the clause basically prohibits the state legislature from enacting any statute that divests a claimant from bringing suit in court for damages.¹⁵⁶ In one case, for instance, the Arizona Supreme Court held that a state statute that barred a claim for battery against a licensed health care professional violated the clause.¹⁵⁷ Although the claimant retained his right to bring a medical malpractice cause of action, the court held that a battery claim protected different interests and would be abrogated under the statute.¹⁵⁸ Many state constitutions have similar provisions protecting the private right to a civil remedy.¹⁵⁹

These state statutes and constitutional provisions, reinforced by federalism concerns, reflect the critical need to protect the tort law mechanism of preventing harm, furthering accountability, and providing redress to injured parties.¹⁶⁰ They suggest that providing a private tort remedy is the default in our system of government and raise compelling policy concerns when legislatures remove them, both on the state and federal level.

C. Governmental Interests in Abrogating Tort Liability

When state or federal governments shield certain industries from tort liability exposure, they sometimes make a general finding that granting immunity is necessary to promote a larger public purpose, as demonstrated in the immunity statutes described in Part II. For example, the title of the ATSSSA made clear that the statute was designed to protect the competitiveness of the airlines.¹⁶¹ Other times, legislatures may find that immunity shields are warranted to protect certain industries, like gun manufacturers or self-driving cars,¹⁶² for other reasons that serve the public interest.

In virtually all cases, a significant assumption is that the traditional tort system unduly hinders (or fails to serve) legislative policy objectives.¹⁶³ But that assumption may be built more on rhetoric and hyperbole than hard evidence.¹⁶⁴ Various studies question the true impact that the threat of tort litigation may have had on the industries that ultimately were protected by liability shields.¹⁶⁵ For example, during the pandemic, “[b]usiness groups cited an ‘emerging threat’ of ‘unfounded lawsuits against them alleging that their customers and employees were infected with COVID-19.’”¹⁶⁶ This “avalanche” of “unfounded” cases never came to fruition.¹⁶⁷ But, as one scholar observed, “tort reform advocates infected the business community with a highly contagious panic about frivolous litigation as a pretext for launching a successful tort immunization campaign to save it.”¹⁶⁸ So too, some scholars have questioned whether lawsuits brought by victims of the 9/11 attacks against the airlines would have been successful, given the weakness of the claims.¹⁶⁹ Similar claims about the need to provide partial immunity from medical malpractice claims have also been debunked.¹⁷⁰ Thus, the shields may not have been necessary to protect industry. But even more significantly, removing tort liability in reaction to unfounded threats of widespread litigation would also remove access to courts for vindication of all claims, including legitimate ones, thereby undermining the normative values of tort liability. Criticism of liability shields does not mean that shields are never appropriate. The real question is whether legislatures have a fair basis for concluding that the purported need for such shields outweighs the damage they do to the interests served by the tort system. Lawmakers have the authority, capacity, and experience to explore the factual basis for legislation.¹⁷¹ It is part of their job, and they should do it when balancing the pros and cons of removing torts. How to balance those needs and benefits is the subject of the following Part.

IV. Legislative Framework for Deciding Whether to Create Liability Immunity

In balancing costs and benefits of granting immunity, I start with this premise: legislatures should have a strong factual and policy basis for ousting or limiting the availability of tort remedies, regardless of the industry or service involved, whether acting ex post (like the 9/11 immunity legislation) or ex ante (like Section 230 granting immunity to social media platforms). No less should be expected given the important functions of the tort system and the strong state interests in providing tort remedies to its citizens, addressed in Part III above. Shields do far more than protect industry from potential litigation. They remove access to the courts for all claims—whether frivolous or credible—against an industry. Removing court access without a valid basis can erode the fundamental norms that access to the tort system promotes, without truly providing the protection the industry seeks. For instance, allowing valid tort claims to proceed reinforces the regulatory function of torts by forcing the industry to internalize the costs credible victims would otherwise have to bear. The deterrence and compensatory values of torts would be lost if all claims against the industry were precluded. This consideration draws directly from the Harlow test, which requires balancing the need to provide a sufficient remedy for violations of law against the social costs of lawsuits against defendants. Accepting that a number of weak, likely unsuccessful tort claims may arise against a defendant is not sufficient grounds to overcome the extreme step of removing all access to the courts. Moreover, without a record that genuinely supports the grant of immunity, the shield may indicate arbitrary decision-making and political favoritism toward one industry over another.¹⁷² To avoid those results, this Part outlines the considerations that legislatures should consistently and seriously weigh before ousting tort recovery.

When lawmakers consider adopting liability immunity, several factors weigh in the balance. These factors include four main areas of inquiry: (1) identifying the public interest served from granting immunity; (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) tailoring warranted immunity to minimize interference with tort policies. More specifically, these inquiries should force examination of considerations such as the critical nature of an industry, the need to act swiftly or the ability to act more deliberately, the degree of existing regulation, the efficiency gains and costs of removing torts, and the availability of an alternative compensation remedy or other substitute measures. In weighing the competing considerations, some factors will weigh more heavily than others. At bottom, imposing tort removal should materially advance an important public interest without significantly undermining the foundational goals of tort law.

A. What is the Basis for Singling Out the Industry for Protection?

The paramount consideration in granting immunity is determining the public interest served in singling out a certain industry for protection, unencumbered by the shadow of liability for wrongful behavior. As a congressional report explained, “limiting an entity’s exposure to litigation and liability can protect that entity from the cost and inconvenience of defending against lawsuits and paying monetary judgments, allowing that entity to devote its time and resources to socially beneficial endeavors.”¹⁷³ In theory, injured people will shoulder the costs of their injuries to promote the continuing viability of those services or industries for general societal benefit.

This may be a worthy goal, but lawmakers need to precisely define the social benefit sought by shielding a particular defendant from liability to strike the appropriate balance. The public interest at issue generally falls under two broad categories: enhancing public safety and promoting economic growth. These interests fall along a sliding scale. The most acute public interests stem from public health emergencies when the healthcare industry must be empowered to respond quickly.¹⁷⁴ Governments may need to prioritize access to some health-related products or services, like vaccines or healthcare workers, during these emergencies.¹⁷⁵ This was starkly demonstrated during the COVID-19 pandemic when the federal government and some state governments invoked their power to shield healthcare service providers, as well as vaccine manufacturers, to encourage their participation in meeting the demands of the emergency.¹⁷⁶ In addition to industries that provide life-saving services, other critical industries like grocery stores argued for liability protections during the pandemic based on public need.¹⁷⁷ The public more readily accepts the need to override private remedies when it involves meeting public health needs in an emergency.¹⁷⁸

Economic concerns for non-critical businesses (like gyms or bars) during an infectious-disease public-health emergency do not weigh as heavily in the balance. The assumption is that the services or products offered by these industries do not directly address the public emergency and the main concern is protecting their economic well-being. Perhaps as an opportunity to pass broad tort reform measures, Congress attempted, but failed, to provide immunity for all businesses potentially subject to “coronavirus-related liability” that might inhibit them from reopening, as discussed earlier.¹⁷⁹ The failure to pass this legislation was partially due to the inability to make out an adequate argument for the need to grant across-the-board immunity protection.¹⁸⁰ This would be a difficult showing. On the one hand, it is unlikely that the economic impact of a public health emergency is evenly distributed among non-critical industries.¹⁸¹ On the other hand, post-pandemic analysis does not show any noticeable economic difference in recovery between the protected and unprotected businesses granted by states for virus-related exposure cases, questioning the need for any protection in the first instance.¹⁸²

Non-health public emergencies, like terrorist attacks, may also require a swift, uniform governmental response that affects private businesses. But providing immunity in the face of these public emergencies may also stem from heavy industry lobbying and not comprehensive or unbiased information. Congress’s immediate response to the 9/11 attacks was to limit the liability of airlines and protect the industry from allegedly immobilizing liability costs; its secondary goal was to address the victims of the attacks.¹⁸³ It is not clear whether the immunity shield granted to airlines was necessary to ensure the continuing viability of the industry, but the industry was very effective in persuading Congress that it was, and Congress did not do even a modicum of fact-finding at the time.¹⁸⁴

Outside of large-scale public emergencies, offering immunity protections sometimes focuses less on addressing an acute social need and more on providing broad-based economic assistance to certain industries. When this occurs, legislatures need to make specific findings on the importance of singling out an individual industry for protection. Technologies or products that substantially improve public health or safety overall would weigh higher in the balance. The classic example is the long-term public health interest in ensuring the availability of childhood vaccines. After the vaccine manufacturers threatened to leave the market when facing the possibility of strict liability in tort for vaccine injury,¹⁸⁵ Congress acted to ensure the continuing supply of childhood vaccines. It created an intricate administrative scheme to protect the industry from widescale liability while offering victims an alternative method of compensation.¹⁸⁶ Congress also offered fostering growth of fledgling industries as a justification for ex ante liability shields. For example, as the possibility of self-driving cars entered the marketplace as a safer alternative to human-driven cars, some scholars advocated for liability immunity to encourage growth of the industry.¹⁸⁷ Granting shields ex ante should allow for more thorough fact-finding and deliberation. It turns out that these calls for immunity were premature and it is more likely that technological problems have held back the projected growth of the industry.¹⁸⁸

Shields have also been granted in response to industry threats to withdraw from the market. As mentioned above, a paramount example of this is the vaccine industry liability protection granted under the National Childhood Vaccine Injury Act,¹⁸⁹ which encourages the pharmaceutical industry to remain in the vaccine market by permanently limiting liability and providing compensation through a government program to individuals who may become ill as a result of a vaccination.¹⁹⁰ Vaccines are considered critical to the social good and the shield did not raise significant objections—in fact, it was welcomed, in conjunction with its administrative scheme—when created.¹⁹¹ Another example is the Price-Anderson Act, which limits liability of the nuclear power industry to protect it from overwhelming litigation costs.¹⁹² This shield was criticized as underestimating the risks inherent in atomic energy and allowing reactors to carry inadequate insurance, which would result in taxpayers bearing most of the costs for a catastrophic nuclear accident.¹⁹³

The gun industry shield under the PLCAA implicated a different interest: the need to protect an industry that supports a “fundamental right” to carry guns.¹⁹⁴ Congress granted the liability immunity to protect this fundamental right, although arguably, ensuring the availability of guns on the market does not represent an important public necessity equivalent to ensuring delivery of vaccines or nuclear power.¹⁹⁵ Granting this shield raised considerable objections from gun control advocates.¹⁹⁶

B. What Are the True Threats to the Industry Posed by the Tort System?

When lawmakers make specific findings about the necessity of providing immunity, they should also identify the true threats posed by tort exposure. Overblown cries of crippling liability should not substitute for evidence.

For example, many commentators questioned proposed shields for businesses from COVID-19 transmission lawsuits, given how difficult these tort claims would be to prove.¹⁹⁷ Plaintiffs would have a difficult time meeting their burden to prove the elements of duty, breach, and causation.¹⁹⁸ Strong defenses, like compliance with regulations, assumption of risk, and comparative fault, were also available to defeat claims.¹⁹⁹ Ultimately, the feared deluge of COVID-19 related exposure cases did not materialize, and several were dismissed early in the litigation.²⁰⁰ Furthermore, lawmakers assumed that the shields were critical to encouraging businesses to reopen, but that assumption was not supported by the data.²⁰¹ Of course, industries prefer to stop lawsuits at the pleadings stage, which liability immunity would allow.²⁰² But that protection may be unnecessary and overbroad.

In defining the problem lawmakers seek to address with liability shields, they need to distinguish between tort- and non-tort-related issues. Some scholars emphasize the need to distinguish between a perceived problem with the tort system and perceived problems with non-tort-system factors, such as the jury system or evidence law.²⁰³ If the true goal is to “eliminat[e] non-tort sources of distortion,”²⁰⁴ then bypassing the tort system through liability shields may be misguided.²⁰⁵

Furthermore, providing immunity is not a one-size-fits-all exercise; specific findings on the projected burden of tort liability on a particular industry are critical. This was one of the objections to the sweeping protections proposed in the Safe to Work Act legislation.²⁰⁶ Classically, tort doctrine is individualized; it embraces “dissimilarities in the type of parties to a tort claim, the complexity of evidence, and differences in the nature and extent of typical losses,”²⁰⁷ and different industries face different liability challenges. In deciding whether to protect a certain industry from tort liability, legislatures should examine the data to determine the likelihood of the industry’s activities inflicting injury on the public, the seriousness of the injury, and the costs of loss prevention for that particular industry. These factors borrow from the traditional BPL Hand formula for tort liability often used to define breach of duty or fault.²⁰⁸ Applying them in the immunity context would give legislatures a structured approach to determine the true threats to industry posed by exposure to liability. The availability and extent of insurance should also enter the mix.²⁰⁹ Considering these factors will allow legislatures to weigh the degree and costs of liability the industry faces, without immunity intervention.

In projecting these costs, mere representation by an industry that it will be crushed if forced to face liability is inadequate evidence.²¹⁰ The fear of significant litigation that conflicts with social interests must be reasonable, and specific data must be used to show that this is a true threat. Do the anticipated lawsuits have a reasonable basis? What is the degree of risk posed by the product or service? How likely is it to occur?²¹¹ What is the likelihood of a plaintiff successfully proving each element of tort liability, or the effectiveness of potential defenses such as assumption of risk? Many industries maintain data on the type, frequency, and success of legal claims brought against their industry. This historical data would be relevant to the need for tort removal, even when the specific liability threat is novel.²¹² It is important to remember, however, that although data considered by lawmakers are typically provided by the industry,²¹³ not all industries have the same level of data available to make these projections. Accordingly, the traditional economic analysis of loss prevention (including the BPL Hand formula) may lend itself more easily to some industries than others. For example, the cost of exposing vaccine developers to liability may be less predictable because there may be less data available than for other products on the market. With new technology, the industry may not have the benefit of empirical evidence.²¹⁴ A recommendation from an independent expert committee, if available, would be very helpful in supporting a liability shield.²¹⁵

Of course, the amount of evidence that legislatures can reasonably be asked to accumulate before making the delicate decisions about removing torts necessarily depends on the nature and context of the problem before it. As Senator John McCain stated during debate after 9/11 on the ATSSSA, “the effect on the airlines of the September 11 terrorist attack put Congress in the unenviable position of having to take immediate action to prevent the collapse of the aviation industry as a result of the federally ordered grounding of all aircraft and the anticipated reduction of air travel.”²¹⁶ But legislative speed is far less justified when no emergency is presented. In the normal course, Congress and state legislatures could be more demanding in requiring industry to produce supporting data.

C. What is the Likely Impact of Immunity on Tort Goals and Policies?

As Harlow explained in deciding whether to extend qualified immunity to government actors, the need to protect potential tortfeasors from liability exposure should be weighed against the need to provide a sufficient remedy to victims for violations of law.²¹⁷ In conducting that balancing in this setting, it is critical to recognize that tort law is a significant instrument used to regulate health and safety and that liability immunity weakens the ability of states to protect their citizens through this avenue. Consequently, lawmakers must specifically recognize the interests at risk in removing tort liability, particularly regarding the accountability, deterrence, and compensation functions traditionally provided by torts.

Looming large is the loss of deterrence for risk-creating actors. By removing tort remedies, public trust in products and services may be harmed. For example, immunity may have removed the incentive to provide the level of care required to protect nursing home residents and workers during the pandemic.²¹⁸

Relatedly, protecting injurers from tort liability can result in the loss of accountability for wrongful conduct. As described earlier, many theorists base tort law on a foundation of legal accountability between the injurer and the injured, justified by principles of corrective justice.²¹⁹ This accountability function can be reduced or eliminated altogether through immunity legislation.²²⁰ Removing tort remedies abrogates the ability to address injustice through compensation, and most immunity statutes do not offer replacement compensation to victims of wrongdoing.

Accordingly, legislatures should make specific findings on whether other measures could address the tort functions affected or lost through immunity and how effective they are. In theory, loss of deterrence from immunity could be addressed through the marketplace or through government regulation. On one end of the spectrum, advocates of eliminating or reducing access to tort remedies often argue that the market will provide sufficient deterrence from overly risky activities, and thus intervention through tort action is unwarranted.²²¹ This argument assumes that the market functions perfectly, which unfortunately is not true. Among other things, market regulation is dependent on consumers’ access to complete information, which is typically limited.²²² Litigation may close an informational gap in the relevant market.²²³ Relatedly, lawmakers need to ensure that liability shields are not counterproductive. Liability protections may have the unintended consequence of encouraging a race to the bottom—they may protect businesses that practice lower safety standards and give them a competitive edge over businesses that maintain higher standards of care.²²⁴ Such a result would affect the trust of the citizenry in the safety of industries, both shielded and unshielded.

On the other end of the spectrum, the availability of comprehensive government regulation theoretically could provide adequate deterrence to wrongful conduct. There may even be fines or enforcement actions available.²²⁵ But the tort and regulatory systems are meant to operate in tandem. As the Supreme Court noted in the context of a medical device preemption case, state tort actions can aid, rather than hinder, the functioning of agency regulation.²²⁶ Moreover, government regulation varies significantly in degree. Does the shield protect a highly regulated industry, like airplanes or pharmaceuticals, or is it an area subject to less regulation, where tort remedies may be more critical in “filling in the gaps” left by regulation?²²⁷ Furthermore, some agency oversight is more effective than others. The standards may not be comprehensive and up-to-date, and some agencies may be inadequately funded. OSHA, which oversees workplace safety conditions, has historically been seen as weaker than other agencies like the FDA.²²⁸ During the pandemic, for example, nursing homes had notoriously high rates of COVID-19 cases.²²⁹ The industry lobbied heavily for liability protections.²³⁰ Critics argued that providing immunity would mask long term problems with the industry, which were not effectively addressed by regulation.²³¹

Tort functions of transparency and accountability of harm-causing actors could be addressed through other mechanisms, but it is important to ensure the adequacy and availability of alternative investigatory methods. These investigations are typically conducted by the executive branch. For example, the President appointed a special commission to investigate the causes of the 9/11 attacks and determine the fault of the government or airline industry.²³² These processes were unsatisfactory to many, however, and even the Chairman of the 9/11 Commission complained that the Commission’s recommendations were not being implemented.²³³ The recommendations also did not address the airlines’ negligence.

Supporting the economic well-being of industry is often cited as a goal in granting immunity. Are there other feasible ways to support industries to accelerate growth, outside of liability immunity? Other avenues include offering tax credits and subsidies,²³⁴ bankruptcy,²³⁵ liability insurance,²³⁶ and alternative systems of compensation. However, economists have criticized promotion of particular key industries through tax credits and subsidies. They have argued that governments are not adept at picking winning industries, that positive effects from industrial promotion can be hard to identify, and that policies favoring particular industries can be captured by special interests.²³⁷ The choice of approach may be driven by which one is more politically feasible.²³⁸ And it may have the added benefit of catalyzing private investment in the same industry.²³⁹

When the availability of tort remedies is removed, the costs of the harm remain on the injured, but compensation can be addressed through substitute systems of compensation. Lawmakers should make specific findings about the viability of providing an alternative no-fault compensation system.²⁴⁰ As a paramount matter, providing public compensation to redress a wrong would help address the tort goal of making the victim whole. But it may also circumvent the unresolved question of whether there is a fundamental right to a common law remedy. When workers’ compensation laws were introduced and subsequently challenged, the Supreme Court suggested in dicta that a legislature could not substantially interfere with parties’ rights under the common law without providing a “reasonably just substitute.”²⁴¹ This line of cases suggests, at the very least, the importance of considering an alternative no-fault compensation system when legislatures remove access to torts.

Even so, providing alternative schemes when tort remedies are removed is the exception rather than the rule. Several reasons explain this history. The schemes may not be viable politically or practically.²⁴² And they are ad hoc creations; they have no standard format. Funding for alternative compensation systems range from direct government funding to funding by the risk-generating activity, either through special taxation of the industry or insurance premiums.²⁴³ The government can also create a reinsurance pool, which has been used to protect high-risk, critical industries.²⁴⁴ The funds typically address a continuing activity²⁴⁵ that imposes significant risk and are intended to supply a form of social insurance against injury.²⁴⁶ Some schemes create an exclusive remedy while others allow the option of using the common law tort system, although they include incentives not to do so.²⁴⁷

Creating an administrative scheme of payment for injuries, like workers’ compensation or the 9/11 Victim Compensation Fund, can offer several advantages over traditional tort remedies. In theory, they can lower the costs of the system and the payments for injury, by standardizing and limiting damages, while also lowering transaction costs for the parties and the administering body involved.²⁴⁸ This is a lesson from mass tort litigation, such as tobacco and asbestos litigation, in which the size and extent of the claims exert pressures to create fixed compensation systems for efficiency and move away from the traditional adversarial model of tort litigation for awarding individualized damages.²⁴⁹ Alternative models can lower the level of proof required of the claimant.²⁵⁰ But these no-fault compensation systems necessarily involve a series of trade-offs.²⁵¹ Generally this means trading more accurate redress (and more accurate, individual corrective justice) for more widespread (although usually lower) compensation on a greater scale.²⁵²

Some critics argue that benefits in alternative compensation systems such as workers’ compensation are too limited and the increasing number of disputed claims have raised transaction costs.²⁵³ Others argue that temporary government funds for victims’ injuries, such as the 9/11 Fund, arbitrarily addressed some victims but not others similarly situated.²⁵⁴ As noted, critics argue that creating these efficiencies comes at the expense of offering individual corrective justice in disputes between private parties.²⁵⁵

Furthermore, even if legislatures attempt to replace some of the functions of torts by providing alternative compensation systems, regulating industry, or investigating causes of injury, other functions of torts may be lost through tort removal. Ultimately, removing tort remedies would rob citizens of a vital function of civil litigation, namely the opportunity to use the power of the courts to seek accountability for the loss suffered by the plaintiffs.²⁵⁶ In addition, it deprives the victims of the expressive function of tort law.²⁵⁷ Alternative systems also deprive courts of the opportunity to develop the law of obligations. Some scholars have raised the question about the constitutionality of federal liability shields, given that tort law historically is in the state purview.²⁵⁸ Furthermore, tort law allows a jury of citizens to decide whether private injuries should be addressed through compensation. In that way, it serves a fundamental democratic value.²⁵⁹ Immunity supplants that democratic citizen function with government dictate.

Consequently, victims may not achieve the same sense of justice and accountability that torts can offer. And although these alternative systems have significant deficiencies¬—often depriving the victim of their “day in court,” an accounting and retribution, and the potential for a larger compensatory award²⁶⁰—most often, the government offers nothing at all, as in the case of immunity for gun manufacturers, so victims may be left without recourse altogether.²⁶¹

D. Assuming That Some Immunity is Warranted, How Long and How Broad Should It Be?

The scope of interference—from partial to total elimination of tort remedies—is an important legislative consideration.²⁶² Lawmakers should define the parameters of immunity with precision. Given the presumption against liability immunity and the lawmakers’ burden of justification, the shield should be narrowly tailored, balanced, and shaped to impose the least possible interference with tort remedies.

Many variables affect liability shields. The shields can differ by type of lawsuits, degree of culpability, class of defendants, types of claims, or types and amount of damages.²⁶³ Additionally, some liability shields may be more limited in time, like the CARES Act, which required continual renewal or re-appropriation, or may grant open-ended protection, like gun manufacturers under the PLCAA. The need for shields may lessen over time as the crisis abates and risks are better managed. During the pandemic, for example, most shields for healthcare workers were tied to the duration of the public health emergency.²⁶⁴ As COVID-19 infection rates decreased, the broad liability protections were likely no longer necessary.²⁶⁵ Removing immunity reintroduced the incentives for industries to remain abreast of the state of the knowledge on the virus, which was ever-changing.²⁶⁶

V. Conclusion

The relationship between public and private interests is always a delicate balance, but this is especially true when governments take extraordinary measures and insulate an industry from tort liability. Redressing private wrongs through tort law has been a part of the American legal landscape from its inception. Although legislatures have considerable leeway to alter or eliminate access to tort redress, they should do so only in exceptional circumstances, given the stakes at issue. This article offers a framework of factors to consider before legislatures exercise their power to remove torts. The framework requires lawmakers to make specific findings on the public interest served by granting immunity; the true threats to the industry from liability exposure, the impact on tort policies and functions served by torts, and creating the minimal interference with those policies. Addressing these factors serves the goal of weighing the cost of removing access to the courts to vindicate rights through the tort system against the need to protect an identified public interest. The framework approach will offer consistency in decision-making, made as free as possible from interest group politics or ad hoc decisions, and help ensure that granting immunity does not come at too great a cost.

[*] Jack E. Brown Chair in Law at Arizona State University’s Sandra Day O’Connor College of Law. I thank Ellen Bublick, Erin Scharff, Joel Nomkin, and the organizers and participants of Obligations X: Private Law and the State in Banff, Canada for their insights and suggestions. Alyson Rish provided excellent research assistance.