The New Wages of War - Devaluing Death and Injury: Conceptualizing Duty and Employment in Combat Zones
Michael H. LeRoy
University of Illinois College of Law
August 26, 2010
Stanford Law & Policy Review, Forthcoming
My study explores the growing interface between civilian employment and military service in war zones. This research is motivated by changes in waging war. The U.S. once had a vertically integrated process to transport troops, run supply chains, and maintain equipment. Today, the military outsources these functions to private companies. Their workers drive trucks, cook meals, maintain equipment, and provide security. Nation-building activities include building roads, schools, and dams in Iraq and Afghanistan. When these jobs are subcontracted, soldiers and civilians work together in coordinated duty and employment. This integrated model constitutes a new war-labor paradigm.
My research question asks: When civilians and soldiers are seriously injured or killed in these integrated settings, how are their losses compensated? Recent litigation is reshaping the law in this area. I present a typology of published court opinions, showing the frequency of success for tort and worker compensation-type claims for civilians and soldiers. The Fifth and Eleventh Circuit Courts of Appeals recently rejected government-immunity defenses for contractors, paving the way for trials on tort claims. I suggest four public policy options:
● Option 1: Preserve the Status Quo. The present method for resolving death and injury claims does not necessarily need to change. Civilians and servicemembers are able to try cases in civil law courts. This means that judges are open-minded in responding to the new war-labor paradigm.
● Option 2: Create a Federal Worker’s Compensation Policy for Civilians Who Work with Military Forces in War Zones. This could be accomplished by enlarging the scope of the Defense Base Act. This type of worker’s compensation pays civilians who are injured or killed on public works projects that occur outside the U.S. The scope of the law could be expanded to cover death and injury outside the confines of a military base – by way of illustration, to Halliburton drivers who were killed or injured on Iraqi highways away from military bases.
● Option 3: Apply Extra-Territorial Provisions in Current State Worker’s Compensation Laws to Civilians Injured in a War. For example, California’s Labor Code Section 36005(a) provides for extra-territorial coverage of workers. To illustrate: A court ordered a benefit under California law for a minor league pitcher who signed a professional contract in California and injured his arm in a Florida league game. Other jurisdictions might expand territorial reach to cover workers who are domiciled in their state but assigned to work in a war zone.
● Option 4: Improve the Compensation System for Soldiers Who Are Killed or Injured While Serving with Private Contractors: A federal program paid about $4.7 billion every month in 2008 to the survivors of Americans who died as a result of a service-connected disability. But a recent GAO report showed that these benefits were far less than those paid to civilians under federal worker’s compensation.
In sum, the commercial side to waging war means that some corporations seek to profit and grow from the new war-labor paradigm. This study does not criticize this as a matter of principle. However, when companies contribute to the death or injury of service members or civilian employees, there needs to be a better method to improve the compensation of these losses.
Number of Pages in PDF File: 37
Keywords: Sovereign Immunity, Courts, War Labor, Torts, Worker's Compensation, Militaryworking papers series
Date posted: August 29, 2010
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