We're All In This Together: Extending Sovereign Immunity to Encourage Private Parties to Reduce Public Risk
75 U. CIN. L. REV. 1595 (2007)
The concept of “sovereign immunity”-- the doctrine under which governments are considered immune from suit unless they consent to such suits -- has long been supported by the policy that, if government is necessary to perform some essential functions, it should be able to perform those functions free from costly litigation that would allow courts and juries to “second guess” government policies. From the concept of sovereign immunity has grown the judicially-created doctrine of the “government contractor defense,” under which private entities that contract with government to help it perform its necessary functions (predominantly military operations) are held to share the government's immunity from suit, lest government be denied its ability to most effectively further its national defense goals by relying on the private sector for goods and services that are essential to the success of those efforts. As it has become increasingly clear both that legislatures (and expert agencies insofar as legislatures choose to defer to them) are the most appropriate developers of policies designed to maximally reduce public risks, and that government must rely on the private sector to help counter more and varied threats to its citizens, Congress recently enacted two federal statutes -- the SAFETY Act and the PREP Act -- to provide private entities that can more greatly reduce risks to the public safety with protection from litigation that would have otherwise deterred them from acting at all. Both these statutes are supported by the policies undergirding sovereign immunity and one, the SAFETY Act, explicitly codifies, for the first time, the government contractor defense, while also expanding the defense's reach. This article explores these recent developments, and the evolution of liability law and the threats to public health and safety that led to them.
