TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, November 19, 2021

Karako-Eyil on Increasing Vaccination Rates Through Tort Law

Nili Karako-Eyil has posted to SSRN Increasing Vaccination Rates Through Tort Law:  Theoretical and Empirical Insights.  The abstract provides:

Tort litigation has been used as a method for advancing public health for the last several decades. Tobacco litigation, toxic tort cases, HIV infection cases and obesity claims are examples of this type of litigation . Advocates for using tort litigation in the context of public health often note the deterrent effect of tort law as a justification for their approach. 

In recent years, voices supporting the use of tort litigation as a tool for promoting public health have also been heard in the context of vaccination. Concerned by outbreaks of diseases that had been completely or nearly eliminated in past decades, such as pertussis and measles, public health advocates argue that parents should be held liable in tort for failing to vaccinate their children. Similar to their antecedents, these advocates present deterrence and its resulting benefits to public health as prominent justifications for the use of tort law in the context of vaccination.

The paper seeks to examine whether imposing tort liability on non-vaccinating parents is expected to have a deterrent effect on parents when making vaccination decisions. In general, this paper addresses the question of whether tort law may be used as a method to increase vaccination rates and thus promote public health.

For this purpose, insights from traditional economic theories of tort law and behavioral economics, alongside relevant empirical findings, will be used.

The paper concludes that while other tort theories may justify imposing tort liability on non-vaccinating parents, i.e., corrective justice, the rationale of deterrence provides a poor justification for using tort litigation in the context of vaccination. Therefore, the claim that adopting a liability model is expected to promote public health by increasing vaccination rates should be made with caution.

Scholarship | Permalink