Writers who study torts tend to engage with liability as a force or vector that imposes consequences on parties accused of injuring others. For most of us in this field, liability means accountability or reckoning. This occupational interest in what tort does in action, or can do when it’s enlisted, can obscure the impacts of shelters from accountability.
Removing Torts marks Betsy Grey’s return to a source of tort nonaccountability that Professor Grey knows backwards and forwards, the statutory kind. This refuge has ample company in the land of shelters. Fortuitousness, for example, also fends off reckoning: Prospective defendants get lucky when prospective plaintiffs don’t know what hit them, run out of time or money, fail to clear the intake criteria of a contingent-fee attorney, on and on. Judge-made immunities of the common law—especially the intrafamily and charitable kind—are more orderly, though they’ve dwindled into something of a quaint oddball relic.
The shelter of immunity provisioned by statute is not fortuitous or in decline. It’s formal, official, categorical, out in the open for anyone to look up. It enlists judges as enforcers—and does so in a hierarchical way, sharing little power with them. Statutes of limitation provide an affirmative defense to liability that delivers immunity with almost no room for judicial discretion. Preemption, though a judge-made doctrine, can immunize a defendant only with a pertinent statute on the books. In short, legislatures hold unique strengths to crush tort reckoning.
Grey has been sounding an alarm about this power for at least 28 years. Published in February 2025 (though with a 2024 citation date), Removing Torts revisits themes broached in her 1997 warning Make Congress Speak Clearly: Federal Preemption of State Tort Remedies. In Removing Torts, Grey both widens and sharpens her long-held worry about the danger of shelter by statute.
The new wider lens in Removing Torts looks beyond preemption as a statutory source of tort immunity, paying more direct attention to five other instances of the phenomenon. Grey gathers (1) state and federal legislation enacted to protect a range of businesses in response to Covid, a topic that received prompt commentary from Grey in 2021; (2) immunity for airlines for 9/11 claims; (3) gun manufacturer immunity; (4) the workers’ compensation barrier to tort claims; and (5) Section 230 immunity as a protector of online platforms. (P.136.)
What’s sharper in addition to wider about Grey’s agenda in Removing Torts is the uptick in her current demand. Make Congress Speak Clearly had pushed for disclosure and transparency about consequences; it told legislators what to say about their actions. Removing Torts tells legislators what to do, a task list that includes but is not limited to providing information.
“Legislatures,” Grey writes, “should make a consistent set of evidence-based findings and apply the principle of balancing before ousting tort remedies” (P. 154). If legislators follow what Grey tells them to do, they will take “four transparent steps” before they codify statutory immunity: identify the public interest that their immunity enhances, determine the impact that liability now has on the sector they seek to protect, consider how immunity could diminish “the accountability, deterrence, and compensation functions traditionally provided by torts,” and tailor the immunity they provide “to minimize interference with tort policies.” (P. 137).
The latter half of this undertaking would remind lawmakers that tort law is worth celebrating. Professor Grey reviews (Pp. 156-61) several good things that go away when immunity thwarts tort. Back in Make Congress Speak Clearly, Grey spoke about states as holders of a “right” to offer “a compensatory remedy for their injured citizens.” (Make Congress Speak Clearly, P. 565) Rights discourse tends to depict the state as threatening (and sometimes safeguarding) rights rather than holding a right for their own benefit. Grey upends this convention to good effect. Tort liability imposes force on a public that must obey, yes, but liability itself is a vulnerable political condition. The accountability it delivers has powerful enemies.
“Legislatures … should.” “Make Congress speak clearly.” “[E]xceptional circumstances” might be necessary to justify a legislature’s choice “to alter or eliminate access to tort redress.” (P. 178). Grey says so, but how many divisions does she have? Skeptical readers might wonder when and how Grey will extract the cooperation that her proposals need to get off the ground.
The proposer herself seems of two minds on the question of whether legislators will heed her call. On one hand, Grey’s conclusion back in Make Congress Speak Clearly sounded confident: “Congress gains little from writing ambiguous statutes.” (Make Congress Speak Clearly, P. 627) This powerful legislature knows what it wants, and the American public can expect it to act in its own interest. On the other hand, just a few pages earlier in that same article Grey took a different stance: “If Congress is not required to speak clearly,” then “it is likely to avoid its responsibility.” (Id.; P. 618). The latter posture sounds right to me; I’m inclined to agree with pessimistic Grey.
Yet plenty of potential remains in Grey’s exhortation that legislators fulfill occupational and constitutional obligations rooted in democratic federalism. Removing Torts sends a directive to state actors that combines high ideals and a clear path forward. Grey cannot compel any legislature to follow her “four transparent steps,” but individuals who serve in these bodies can learn what’s in her recommendations and make choices.
I’d like to see what might be dubbed “the Grey Principles” emerge as a banner that legislators and candidates for legislative office could embrace. Interlocutors in turn can ask these individuals where they stand on Grey’s insistence that legislation be read with reference to the work of other constitutional actors, especially courts.
“Tort liability exists,” a Grey Principles exponent can begin when addressing a candidate for legislative office. “After you’re elected you may learn about a bill that codifies immunity from that liability. Will you identify the public interest at stake, work to learn the impact of liability on the sector affected, consider the effects immunity will have on the policies that tort honors, and tailor whatever immunity you and your colleagues enact to minimize the interference with the good things tort does?” Candidates who are incumbents will have made choices that can be scrutinized through a Grey Principles lens.
Political conditions facilitate that scrutiny. An onlooker who wants to apply the Grey Principles has access to the (relative) transparency and accessibility of campaign platforms, durable statements that candidates for office make about themselves, on-the-record questioning of candidates by journalists, legislative deliberations on the floor, logs of legislators’ votes, and legislatures’ punishment-and-reward schemes, some of which are intelligible from the outside.
There’s more. I’ve remarked that tort immunity as installed by legislatures shares little power with judges: but it does share some. Judges have occasions to assess, and sometimes invalidate, statutes that dole out this benefit. Tort immunity rendered by preemption, for example, has occupied multiple U.S. Supreme Court decisions. Reviewing courts can examine the legislative record for information about its adherence (or, perhaps more likely, its nonadherence) to the Grey Principles.
Lawyers who defend immunizing statutes can use documents like memoranda in support of summary judgment to tell judges about the regard that legislatures had for the benefits of keeping liability alive. Opponents of immunity in the same litigation might have contrary facts to present. Going back to the stages of legislation before enactment, activists can seed a source of immunity with Grey Principles content. Well before a president or governor signs a bill, its legislative history can be populated with references to the importance of tort liability.
Warning has a long heritage in tort. This measure often fails to deliver safety, but it can spur useful conduct. Professor Grey has warned her audience to beware the unseen dangers of shelter and then, at least to this reader, goes further: I find in Removing Torts a timely plan for action.
