Our research suggests that they may not really be about protecting businesses, as we found after interviewing dozens of business owners, reviewing public opinion surveys and undertaking a statistical analysis of which states enacted these shields. Much as with masks, vaccines, school reopenings for in-person learning and many other public policies dealing with the pandemic, these laws are best understood as having been passed for partisan reasons.
What are corporate liability shield laws?
A liability shield is a law that protects specified entities against lawsuits. Shield laws can be written either narrowly or broadly, both in terms of who they protect and what they protect against. For instance, a shield law could protect a journalist from demands to reveal his or her sources. Most states enacting covid-19 liability shields identified the purpose as protecting businesses from civil lawsuits related to actual or potential exposure to the coronavirus. How much these laws actually shield businesses varies from one to the next; sample provisions include notice requirements, proof requirements, prohibitions on filing and limitations on damages.
Lawsuits over virus transmission were already hard to win
Most lawsuits over transmission of a virus such as the coronavirus accuse a business of negligence. To win a negligence lawsuit, a plaintiff must show that the situation meets four specific criteria:
- That the wrongdoer had a “duty of care,” a legal term meaning they were responsible for acting as a reasonable and prudent person in society.
- That the wrongdoer breached that duty — failed to exercise due care through such actions as, for instance, failing to remain isolated when infectious.
- That the person or entity sued actually caused the harm.
- That the plaintiff did in fact suffer harm.
Winning a negligent transmission case requires proving causation of harm. In other words, the plaintiff has to prove that they contracted the virus at a specific business. That’s tricky for a highly contagious virus such as the coronavirus, since every public outing or interaction with another person could have been the source of viral transmission. Only in instances with low community transmission and exceptional contact tracing can someone clear the relatively low “more likely than not” standard when seeking to prove causation.
The plaintiff has to clear another hurdle in proving the business was negligent; they have to overcome what the law calls “assumption of risk.” When a deadly virus is prevalent in a community, a person entering a business is thought to have voluntarily assumed the risk of potentially contracting the coronavirus, particularly if they have not taken steps (such as masking) to mitigate transmission.
So, why do these laws exist?
In searching for an explanation as to why these laws were passed, we looked first to see if small businesses wanted them, having interviewed 24 managers and owners of small businesses from all over the country, with more to come. We’ve contacted a wide range of businesses, but focused mostly on small retail outlets such as grocers and music stores, and non-chain, family owned restaurants.
We began our interviews by asking what concerns they have had about the pandemic. So far in our interviews, small-business owners and managers have almost universally mentioned worries about being able to stay open and about having enough customers to survive. None that we have spoken to have said they were concerned that they’d be sued by employees or customers for contracting the coronavirus on the premises. That’s been true in states with and without shield laws.
We have not found reliable surveys that could clearly indicate whether Americans wanted these shield laws. Many of the surveys we found that did suggest a preference were put out by organizations — such as the pro-business U.S. Chamber of Commerce — that had expressly pushed for these laws; their surveys had questions worded in ways that make it difficult to trust their findings.
Small businesses do not seem to be clamoring for these shield laws; it isn’t clear whether Americans at large wanted them, either. And the laws are legally unnecessary.
So why do they exist at all? Partisanship.
Republican legislatures pushed for these laws
To see whether partisanship lay behind these shield laws, we ran a statistical analysis to uncover factors that most influenced their passage. We examined such variables as the Centers for Disease Control and Prevention’s official tally of coronavirus cases per capita in a particular state over time; the partisan affiliation of the state’s governor; the percentage vote margin by which the GOP won or lost that state in the 2020 presidential election; and which party controlled the state legislature.
Only one of those was statistically linked with the passage of shield laws: whether Republicans or Democrats controlled the legislature.
Specifically, when Republicans fully controlled the state legislature, our statistical model found there was a 78 percent chance, on average, that that state would pass a shield law. When the GOP didn’t fully control a state’s legislature, those chances fell to just 8.4 percent.
Interestingly, New Hampshire is currently working to pass a coronavirus shield law. New Hampshire is the only state in which the 2020 election shifted the legislature’s control from Democrats to Republicans.
Politics isn’t just about governance
Our research helps illustrate the political science idea that politics isn’t just about effective governance. Showboating, or “credit-claiming,” as the political science literature calls it, is a big part of a politician’s job. Passing a law, even a law that doesn’t really do anything to meaningfully change the law, is doing something — to which a politician can point to show they are being productive. Passing these laws may give Republicans a chance to performatively claim they are pro-business — even if businesses aren’t actually being helped.
Nicholas Barry Creel (@Prof_Peacock) is an assistant professor of business law at Georgia College and State University.
Jehan El-Jourbagy (@LawProfessorEl) is an assistant professor of business law at Georgia College and State University.