Policymakers in the Dock

TORT SUITS--ACTIONS for money damages due to personal injuries of one kind or another--are ubiquitous in American life and law. Most tort cases concern claims brought against drivers, health care providers, homeowners, product distributors, other businesses, and other private actors whose allegedly faulty conduct injured the claimant. But society has a special interest in tort cases seeking to impose liability on government entities or officials (public tort law) because such cases sometimes implicate important public policies, institutional values, and constitutional principles. Although private and public tort law are similar systems for the most part, the key difference--the legal immunity from suit that is sometimes available to public officials and entities--lies at the heart of our governmental system. Americans need to understand the justifications and limitations of official immunity. Let us begin with the similarities between private and public tort law. Both systems share two conventional goals: deterring socially undesirable conduct, and compensating the victims of such conduct. Some other social goals, however, constrain the pursuit of deterrence and compensation. First, both public and private tort systems should affirm, or at least not contradict, the dominant moral values of the community. This is not to say that those values are stable; in a dynamic, restless society like ours, they are subject to change. (Consider, for example, public attitudes toward smoking, seatbelt use, and homosexuality.) Second, both systems should be cost-effective, with costs and benefits defined very broadly. (Many legal experts seriously doubt whether the private tort law system can pass this test.) Now for some of the dissimilarities. Government, as taxpayers and plaintiffs' lawyers know, has the deepest pockets of all. This means that judgments against it will definitely be paid, which is not the case with private tort judgments unless the defendant is wealthy or adequately insured. This difference Probably contributes to certain features of government liability statutes like the Federal Tort Claims Act: its preclusion of juries and punitive damages, and its restrictions on plaintiffs' legal fees (which presumably, and in my view improperly, also definitely limits their access to the courts). The public fisc, so the argument goes, is simply so tempting a litigation target that access to it must be constrained--like a honeypot guarded by nettlesome bees. But perhaps the most important difference between private and public tort law--the one that I shall emphasize here--concerns the importance of the goal of encouraging vigorous decision making, including appropriate risk taking. (Appropriate, of course, is a question-begging word, and properly so in this context.) Vigorous decision making--the avoidance of undue timidity--is socially desirable in both domains, but especially in the public sphere, for several reasons. If a private firm decides that the legal risk of having to compensate potential victims is low enough compared with the action's potential benefits to the firm, it will undertake the action--for example, manufacturing a product, undertaking a medical intervention, driving a car, or buying machinery for the workplace. Such decisions will have some effects on third parties, of course--the product will be available for other consumers to purchase, the medical treatment may improve (or impair) the lives of the patients' family members, the car may injure others, and so forth. But the effects of those actions, and of the adjudication of rights and damages that may result, will largely be internalized to the two parties. In that sense, the only public value implicated by such disputes is the social desire to remedy the wrong suffered by the victim. If the private tort rules induce the potential injurer not to act--not to produce a widget or take that car trip--it is largely a matter of indifference to the rest of us. …