Delaram Takyar (Vanderbilt University – Vanderbilt Law School) has posted The Hidden Price of Government Immunity on SSRN. Here is the abstract:
Sovereign immunity laws impose an unequal and unreasonable burden on disadvantaged communities. Courts and legislatures often justify these laws by citing economic and political benefits, namely that immunity laws protect the public fisc and allow public officials to govern without “undue caution.” These benefits translate into purported financial savings and improved government for everyone. What is left out of this narrative, however, is that marginalized communities pay a disproportionate price to secure these benefits for the rest of society.
This Article applies cumulative disadvantage theory to the study of law for the first time, proposing an original framework to explain how government immunity laws place a disproportionate burden on marginalized communities and, in doing so, contributes to the reproduction of disadvantage. To that end, I argue that government immunity laws operate through two pathways—a prevalence and a consequence pathway. Members of disadvantaged communities are especially likely to suffer injuries at the hands of the government and then, even after suffering identical injuries as their more privileged counterparts, have a disproportionately difficult time recovering. I combine an empirical analysis of disparities in interactions with government entities by race and class with a literature review of social science and public health research on the consequences of injuries. I conclude that government immunity laws effectively operate similarly to a regressive tax, placing an outsized financial burden on those who are least equipped to handle it.
Though this framework applies to all government immunity laws, I argue that it is uniquely applicable to state and local tort immunity laws. To that end, this Article provides the first-ever fifty-state survey of these laws. I argue that state and local immunity laws are in need of unique attention because they have become more consequential for disadvantaged communities since they were first passed in the 1970s and 1980s. State and local governments have gained access to more federal funding and been subject to diminished federal oversight due to the Supreme Court’s New Federalism jurisprudence. As a result, these governments have gained immense power over services that marginalized communities are disproportionately likely to interact with, such as public housing, education, and benefits.
The Article ultimately argues in favor of revisiting government immunity laws—proposing both broad reforms that restructures immunity protections across the board, as well as targeted reforms that are tailored to offset the disproportionate burden these laws place on marginalized communities.