By: Lauren Villa
Sovereign immunity is one of the basic tenets of American legal
theory. Justification for the doctrine lies in the balancing
of public needs: governments provide vital services to
citizens, and the public benefit of having these services outweighs
citizens’ interests in unlimited accountability arising from their
delivery. When the cost of exposure to unlimited liability
outweighs the benefits of accountability, the government’s ability
to continue public services is placed in jeopardy. Sovereign
immunity serves to protect the public by ensuring the continued
availability of essential public services.
Modern local governments are increasingly outsourcing to private
firms for public service provision. Privatization is used as
a solution where government programs are failing because private
firms offer flexibility in program operation and management and are
more adept at responding to changing circumstances than
governmental entities. Governments also benefit from private
partnerships by way of the resulting resources and personnel that
become available for other uses.
Privatization and its resulting benefits can be encouraged by
extending sovereign immunity to private entities providing public
services. The principal justification for sovereign immunity
applies equally to private entities: the public’s interest in
the continued delivery of essential services far outweighs their
interest in redressability. This Note proposes that the
controlling factor in the realm of sovereign immunity should be the
nature of the service provided. In privatization, modern
governments are finding new solutions to problems that have
hindered effective public service delivery. Immunity would
encourage the beneficial trend towards privatization.
This Note focuses specifically on emergency medical services to
illustrate these concepts. Because emergency medical service
is a vital part of any infrastructure, the public interest
served—the protection of citizens’ health and welfare—makes
continued and improved delivery of utmost importance. Part I
discusses the doctrine of sovereign immunity and the public policy
behind it. Part II examines the various methods private
entities currently employ to gain immunity under individual state
statutes, and is divided into sub-parts based on the type of
immunity statute a particular state employs. Finally, Part
III explores the policy justifications that favor extending
sovereign immunity to private emergency medical service providers,
and proposes state legislative action to implement private entity
immunity where public services are involved.
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