Should Government be Allowed to Recover the Costs of Public Services from Tortfeasors?: Tort Subsidies, the Limits of Cost Spreading, and the Free Public Services Doctrine

Abstract:     
The free public services doctrine (also known as the municipal cost recovery rule) states that a government entity may not recover from a tortfeasor the costs of public services
occasioned by the tortfeasor's wrongdoing. This article traces
the history of the doctrine and argues for its elimination. The article criticizes case law supporting the doctrine and raises objections based on fairness, efficiency, and institutional concerns about the proper limits of judicial policy making. The article discusses the implications of eliminating the doctrine for tobacco litigation, gun litigation, and tort reform.

Keywords: cost-recoupment litigation, free public services doctrine, tobacco litigation, gun litigation, tax subsidies, tort reform

JEL Classification: K00,K13,K23,K41,K32,E62,H23,H41,H51,H71,I11

Accepted Paper Series