In the United States, one startling response to COVID-19 has been a push for so-called “liability shields,” laws modifying tort doctrine so as to largely eliminate tort liability for negligently causing COVID-19. Though not enacted at the federal level, such changes have been adopted in numerous states. This article excavates and articulates the tort theory that lies behind this puzzlingly response to a pandemic. I call the theory “tort deflationism.” Grounded in modern American conservatism and with a doctrinal pedigree dating back to the 1970s, tort deflationism explains and justifies only minimal tort liability, out of deference to non-governmental actors – especially family, church, and business—and suspicion of government competence and power. Other tort theories should reckon with tort deflationism, and I discuss some challenges of doing so. The contest between tort deflationism and other theories speaks to ongoing debates about the legitimacy of law in pluralist democracies. I urge tort theorists to enter these debates and to consider their implications for tort law itself.
First and foremost, I thank Ariana Lazzaroni and Eric Dolce for their dedicated and excellent research assistance. This article could not have been completed without their fine work. For extensive and useful conversation about the piece, I thank Eileen John. I thank Robin West for her careful, thoughtful feedback on an earlier version. Throughout this article I cite other tort scholars’ work as appropriate. But because the article addresses tort theory generally, many scholars’ writings inform the discussion. I will inevitably fail to name all those I should, but in addition to the authors cited in this article, I want to express my appreciation to the following for their published work related to tort theory, works that have aided my own effort here: Ken Abraham, Anita Bernstein, Greg Keating, Virginia Nolan, Michael Rustad, Emily Sherwin, Edmund Ursin, and G. Edward White.
© 2021 Walter de Gruyter GmbH, Berlin/Boston