The Deep Architecture of American COVID-19 Tort Reform 2020–21
21 Pages Posted: 28 Mar 2022
Date Written: March 24, 2022
The rapid emergence of the COVID-19 pandemic produced massive state actions to protect in public health through the exercise of the police powers by local, state and national governments. In the United States there were calls early in the crisis to exercise the state’s power over tort law: As early as April 2020, the American Tort Reform Association published a White Paper, Responding to the Coming Lawsuit Surge that called for “reasonable constraints on . . . lawsuits that pose an obstacle to the coronavirus response effort, place businesses in jeopardy, and further damage the economy.”
This article, prepared for the 27th Annual Clifford Symposium, “Civil Litigation In A Post-Covid World,” has two parts. First, it collects, as of the end of 2021, the various tort reforms adopted by United States jurisdictions and classifies them according to a variety of dimensions, including the scope of the immunities proposed and the changes to tort doctrines by which defendants were provided increased protections from suit. Second, it provides a theory of tort reform in the United States from the perspective of whether reforms are “tort negative” or “tort positive” and provides historical examples of both types, including the General Aviation Revitalization Act and the Federal Employers’ Liability Act.
The Article analyzes the variety of tort reforms proposed and adopted since 2020 in connection with COVID-19 as a particular type of tort negative tort reform. Based on this analysis, policy makers can clearly see the lack of rational connection between the reforms adopted and the purported public policy goals upon which these legislative efforts were based. This Article should server as a cautionary tale of a failed effort at tort reform, and one that should not be emulated in the future.
Keywords: COVID-19, tort reform, litigation, torts
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