A Theory of Government Damages Liability: Torts, Constitutional Torts, and Takings


Theories of tort liability generally fall within two broad camps: the instrumentalists claim that tort liability promotes efficient investments in safety by cutting into the revenues of those who under-invest in safety; and the advocates of corrective justice claim that tort liability embodies a moral obligation of culpable parties to bear losses for which they are fairly considered responsible. Neither theory offers much support for government tort liability. Unlike private tortfeasors, the government’s objective is not profit maximization; it responds to political and not market discipline. Thus, the instrumental justification for tort liability is wanting in the public sector. As for corrective justice, the government passes its legal costs along to the taxpayers, who bear little if any culpability for the underlying tortious conduct. Thus, corrective justice also supplies little support for public-sector tort liability. Indeed, there is an emerging consensus among legal scholars that government tort liability lacks a coherent justification.

In this article, I endeavor to show that the emerging consensus is wrong. To do so, I anchor the justification for government tort liability in a theory of political behavior. I look to politics because the government responds primarily to political costs and benefits, whereas private tortfeasors respond primarily to economic rewards or punishment. In my view, government tort liability exacts a political price by diverting the funds used to pay judgments and other litigation costs from what elected officials regard as the politically optimal use of those funds. Therefore, government liability creates a political incentive to invest in loss prevention in order to maximize political control over public resources. This theory, however, does not argue for unlimited government liability; to the contrary, it also provide a justification for many of the immunities that limit government liability.


Civil Rights and Discrimination | Constitutional Law | Torts

Date of this Version

February 2006