Skip to main content

Abstract

Sometimes acts of the federal government cause harm; sometimes acts of contractors hired by the federal government cause harm. In cases involving the latter, federal contractors often invoke the sovereign’s constitutionally granted and doctrinally expanded supremacy to restrict avenues for the injured to recover even from private actors. In prior work, we analyzed how federal contractors exploit three “sovereign shield” defenses—preemption, derivative sovereign immunity, and derivative intergovernmental immunity—to evade liability, accountability, and oversight.

This Article considers whether, when, and how private federal contractors should be held accountable in a court of law. We argue that a contractor should be required to qualify before it can derive the immunity enjoyed by its sovereign partner. This Article proposes that a private contractor be entitled to such “qualified sovereignty” contingent on satisfying three conditions: (1) it was acting as the government’s agent, (2) it complied with any guidelines established by the government, and (3) it was reasonable for the contractor to believe that its conduct would not violate rights protected by law. Adopting scaffolding from two embattled doctrinal constructs—derivative sovereign immunity and qualified immunity—qualified sovereignty balances the rights of victims to recover for harms with protection for private entities

Download the Full Article

Other Articles from WLR Print Edition

June 1, 2022 in PRINT EDITION

The Chorus Doctrine: Promoting Sub-National Diplomacy in Regional Growth Management

Abstract: Sub-national diplomacy, also known as paradiplomacy, occurs when sub-national actors (think cities or states) engage in international relations, either with other sub-national actors or nation-states. Though typically the province…
Read More
June 1, 2022 in PRINT EDITION

Copyright Protection for Works in the Language of Life

Abstract: In 2001, the DNA Copyright Institute sought to capitalize on the fear of human cloning by offering celebrities the opportunity to use copyright to secure exclusive rights in their…
Read More
June 1, 2022 in PRINT EDITION

Victims as Instruments

Abstract: Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because…
Read More