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Risking public safety;
Tort shield laws; Who gets a shield? By Frank M. McClellan and Mark Rahdert Congress has been busy of late considering and enacting "tort reform" laws limiting civil liability. Earlier this year, it enacted the Class Action Fairness Act, which limits the use of class actions. More recently, it has taken up measures creating immunities for certain industries, including guns (Protection of Lawful Commerce in Arms Act) and fast food (the Personal Responsibility in Food Consumption Act, known as the "Cheeseburger Bill"). Congress also has before it legislation to limit "noneconomic" damages in all civil tort suits. At the same time, Congress has left standing the tort liability shield erected for managed care organizations under the Employee Retirement Income Security Act by the U.S. Supreme Court's 2004 ruling inAetna Health Inc. v. Davila. When subjected to a public-interest analysis in terms of whom the shield laws protect and the impact on public safety, it becomes apparent that despite their lofty-sounding names, the shield laws represent political payoff for industry special interests that do not serve public welfare. In fact, they directly interfere in state tort law decisions about public health and safety. Obliterating state tort law in this fashion disrupts the balance of constitutional federalism. Who gets a shield? The gun, food, drug, health and insurance industries lining up for special protection are all powerful and wealthy businesses with large investments in politicians. The wealth and power these industries wield belie the notion that the shield laws are necessary for them to survive. Nor are the industries composed of large numbers of businesses on the brink of bankruptcy or engaged in the supply of a scarce product essential to public health. As things stand, no rational justification supports shield laws protecting economically thriving sellers of handguns and fatty cheeseburgers. Frank M. McClellan and Mark Rahdert are professors of law at Temple University James E. Beasley School of Law.
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