Thursday, January 7, 2010
An article in the Wall Street Journal -- Soldiers Fight in the Courts Over Liability in War Zones, by Dionne Searcey -- discusses recent and historic attempts by soldiers to bring suit against third parties over injuries suffered while on duty. Barred from suing the government, soldiers have instead sued manufacturers who might be responsible for toxic exposures or malfunctions in military equipment. Manufacturers have in turn responded by citing the military contractor defense, under which they are also given protection from liability if they manufactured according to government specifications.
It has always seemed to me that rather than litigate the many policy issues, the better approach would be to leave it to a clear contractual waiver of lawsuits by incoming soldiers. That way, the government could sort out the many policy concerns by itself and in negotiation with its outside contractors (who may reduce the price of products if covered by a lawsuit waiver), and then the government could instead provide extended health and disability benefits, with all parties saving legal fees. (Such is the reasoning for police and fireman who are generally denied lawsuit rights aginst third parties, but supposedly receive more generous health, life, and disability benefits.) Or the government may decide not to seek a contractual waiver for certain entities, and instead allow lawsuits. Whatever the result, the complicated policy issues are addressed by military experts (and agreed to ex ante by potential soldiers), rather than by far-removed courts. Instead, the courts are left to a more minimal and well-suited role in construing contractual waivers.