Monday, November 12, 2007

Civil Immunity, Blackstone and Legal Regress

I am a law professor but not a lawyer and my legal interests are more in economic analysis of the law and making sense of a variety of different legal systems than in the details of our current system, so I have a question for the actual lawyers out there, coming out of my previous post:

What limits, if any, are there to Congress cancelling tort liability after the fact?

In the criminal context, we have the constitutional ban on ex post facto legislation, but I do not believe it applies to tort and I'm not at all sure it prevents Congress from cancelling (rather than imposing) criminal liability for past acts.

All of which reminds me of a bit of legal history. In English law in the 18th century there was a legal action, still on the books although not much used in practice, called the "Appeal of Felony." It was a private action, like a tort suit, with criminal penalties. Blackstone, describing it, writes:

"IF the appellee be found guilty, he shall suffer the same judgment, as if he had been convicted by indictment : but with this remarkable difference ; that on an indictment, which is at the suit of the king, the king may pardon and remit the execution ; on an appeal, which is at the suit of a private subject, to make an atonement for the private wrong, the king can no more pardon it, than he can remit the damages recovered on an action of battery."

So it looks as though 18th century law took it for granted that the crown could not cancel liability for tort damages, at least after the case had been tried. I don't know if Parliament could. And, if I correctly understand current news stories, everyone takes it for granted that the 21st century Congress can cancel liability for tort damages, if not after judgement at least while the case is in progress.

Any comments from those who know more than I do about current law? Could one argue, along Epsteinian lines, that canceling such liability is a taking, hence barred under the takings clause of the Fifth Amendment?


Sasha Volokh said...

I don't know this for sure. But I'd think that Congress could cancel tort liability at any time until the case becomes final (i.e., when all appeals are exhausted). A court has to apply the law as it exists at the time it's deciding the case, so as long as the case is still pending, changing the law should change the result.

And I'd think that if the case has become final, then it's just taking money away from the new owner and giving it to someone else. Which might count as a taking -- or might not, because money is not always treated the same way as property. But in any event, it would be on a different theory.

Sasha Volokh said...

Interesting... the previous comment was from Sasha Volokh, but Blogger isn't displaying my full name.

David Friedman said...

Sasha writes:

"A court has to apply the law as it exists at the time it's deciding the case"

I don't believe that is the case for criminal law. The Constitution bars a legal change that holds someone guilty for an act that is now criminal but wasn't when it was committed.

And I thought the usual situation, when the law changed, was that the defendant was judged under the law as it existed when his act was committed.

There was a recent high profile case in one of the southern states where a man was convicted of a serious crime for having oral sex with a minor, at a point when he was himself a minor. The law had been changed to make it a much more minor offense, but the change wasn't made retroactive. A court finally let him off, but not on those grounds.

Scott said...


I think Alexander Sasha was answering your question about retroactive tort liability, not criminal law. Because that's the question I emailed him and told him to answer.

Anonymous said...

I suppose whatever the S. Ct.'s current view of the Commerce Clause would provide at least a narrow limitation on wholesale elimination of tort liability.

Perhaps one could argue that wholesale elimination of tort liability encroaches on a traditional state function, i.e., as opposed to limited encroachments where federal law preempts only certain areas. (A more extreme example, could Congress eliminate state criminal liaibility?)

Probably a tough brief to write.

I suspect takings law won't do much work because IIRC regulatory takings are exceedingly difficult to establish, e.g., narrowly targeted regulations that nearly eliminate the value of property (and of course not all tort law concerns property)

In short, they probably could eliminate most tort liability (i.e. all except purely intra-state commerce stuff). (I don't think the retroactivity doctrine would be much of a bar)