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Public Services Meet Private Law

Michael I. Krauss

George Mason University School of Law

San Diego Law Review, Vol. 43, 2007
George Mason Law & Economics Research Paper No. 06-33

Some plaintiffs' lawyers believe that expenses incurred by governments after the criminal use of their products take issue with the claim that the government services for which compensation is claimed are free for all, and therefore ineligible for tort recovery. They argue that government services should not subsidize tortfeasors, and that proper accounting requires tortfeasors to internalize the social costs of their alleged misbehavior. They would do away with what they call the free public services doctrine (FPSD), which one author described as holding that a governmental entity may not recover from a tortfeasor the costs of public services occasioned by the tortfeasor's wrong. On the other side of the political spectrum, proponents of federal tort reform have sought to specifically immunize certain defendants from cost recoupment suits. Of course such legislation, if enacted, would imply that the recoupment suits could have been allowed as a general common law matter in its absence.

This article contends that both camps would benefit from a more thorough understanding of the Free Public Services Doctrine's place within the common law of tort. FPSD is in reality, contra its critics' claims, a universally applied illustration of fundamental common law tort concepts: duty, proximate cause and damages. Wherever these elements remain requirements for common law liability, public service cost recoupment should be denied.

Number of Pages in PDF File: 54

Keywords: tort, tobacco, firearms, liability, government, public services

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Date posted: July 25, 2006  

Suggested Citation

Krauss, Michael I., Public Services Meet Private Law. San Diego Law Review, Vol. 43, 2007; George Mason Law & Economics Research Paper No. 06-33. Available at SSRN: https://ssrn.com/abstract=920041

Contact Information

Michael I. Krauss (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8024 (Phone)
703-993-8124 (Fax)

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