Ted Frank of the American Enterprise Institute has just released a new “Liability Outlook” paper, “Zombie Litigation — Revivers and Retroactive Lawsuits Are Bad Ideas.” The article examines the impact of revising existing law, including through vitiation of existing immunity, to encourage litigation. If legislatures can go back and reimpose potential liability with impunity, then the granting of legal protections will fail to achieve its end in the first place, Frank contends.
It’s a timely topic, given the efforts in Michigan to eliminate protections for pharmaceutical companies enacted into law in 1996.
Frank also has a passage directly on the need to ensure telecom companies have immunity for assisting the government in post-9/11 surveillance of foreign communications.
Telecommunications companies relied upon the assurances of the president and the attorney general that the intelligence-gathering operation was legal. Perhaps those assurances will be determined in the future to be legally incorrect, but a government employee acting under such assurances would have qualified immunity from suit because of the lack of violation of a clearly established constitutional right. Private industry, without the ability to second-guess the attorney general, should be equally protected. According to former attorneys general Benjamin Civiletti and Dick Thornburgh and former FBI and CIA director William Webster:
For hundreds of years our legal system has operated under the premise that, in a public emergency, we want private citizens to respond to the government’s call for help unless the citizen knows for sure that the government is acting illegally. If Congress does not act now, it would be basically saying that private citizens should only help when they are absolutely certain that all the government’s actions are legal. Given the threats we face in today’s world, this would be a perilous policy.
The legislation is thus distinguishable from other retroactive legislation because it is protecting rather than upsetting settled expectations and reliance interests. If anything, it is the plaintiffs seeking billions of dollars who are violating norms against retroactive liability. This is especially true in this particular instance–because the telecommunications companies were acting in good faith, they would almost certainly win the lawsuits after extensive and expensive litigation under existing law. The retroactive immunity would therefore not shift the underlying rights of any parties but merely shut down a litigation discovery process that would give enemies of America a “road map as to how to avoid the surveillance.”
Now compare that argumentation to that of immunity’s most vocal opponents, including the Daily Kos blogger, mcjoan, who in this post calls Senate Intelligence Chairman Jay Rockefeller “Jello Jay” and accuses him of “carrying the water” for the Administration.
P.S. We’ve put the relevant footnotes from Frank’s article in the extended entry below.
49. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
50. Benjamin Civiletti, Dick Thornburgh and William Webster, Surveillance Sanity, OpinionJournal.com, Oct. 31, 2007; accord John Ashcroft, Uncle Sam on the Line, N.Y. TIMES, Nov. 5, 2007.
51. Dan Eggen and Ellen Nakashima, Bush Moves to Shield Telecommunications Firms, WASHINGTON POST A7, Mar. 2, 2008 (quoting President Bush).
Latest posts by NAM (see all)
- Manufacturers Win Several Website Design Awards - June 15, 2011
- China Makes Commitments on Trade, Intellectual Property - December 16, 2010
- ITC Details Widespread Theft of Intellectual Property in China - December 14, 2010