Today, a group of 136 law professors from across the United States, including 31 Center for Progressive Reform (CPR) Member Scholars, will send a letter to congressional leaders urging them to “ensure that our courthouse doors remain open to all Americans for injuries they suffer from negligence during the COVID-19 pandemic.”
The letter, spearheaded by CPR Member Scholars Dan Farber and Michael Duff, comes in response to a push by the U.S. Chamber of Commerce and other corporate special interests to include a “federal liability shield” in the next COVID relief bill, which is now being negotiated in Congress. This shield would prevent ordinary Americans from holding corporations accountable in the civil courts when their unreasonably dangerous actions cause people to become sick with the virus.
As the letter explains, the federal liability shield would violate clear principles of federalism by intruding upon the traditional rights of state courts to define rules of civil liability. It observes that opponents of the civil courts are shamelessly exploiting the COVID crisis to advance their decades-long campaign to shield corporate interests from their duty to take reasonable actions to ensure the health and safety of their workers and customers. Contrary to the claims of corporate interests that they will be inundated by a “flood of litigation” arising from COVID-19, the letter notes that tort law has effective procedural safeguards in place to filter out bogus claims.
Finally, the letter notes that a strong civil justice system provides businesses with important incentives to take reasonable precautions. Conversely, a liability shield would undermine broader efforts to bring to a swift end this ongoing public health crisis. This role of civil courts is especially critical now given that the federal and state regulatory systems – the other legal institutions we count on to prevent harm – have largely sidelined themselves during the past several months. For example, CPR's recent report, Protecting Workers in a Pandemic: What the Federal Government Should Be Doing, demonstrates that workplace safety agencies, from the federal Occupational Safety and Health Administration (OSHA) on down, have refused to take effective action to protect workers against the unique threats posed by COVID-19.
The letter closes by noting: “As with all other kinds of injury, coronavirus victims are entitled to a forum to seek recovery against negligent wrongdoers. We urge you now to provide Americans with this assurance by defeating measures that will serve to limit meaningful access to civil courts.”
For a quick analysis of the liability shield provisions contained in the COVID bill released by Senate Republicans last night, see this post from Duff.