Public Authority Liability and the Chilling Effect

Abstract

According to some, the imposition of liability on public authorities would lead them to adopt defensive practices. Others are much more sceptical and believe that chilling effects may be illusionary. Empirically, some studies seem to confirm that chilling effects exist, while other studies do not find such an effect. In the authors’ judgment, the ambiguity in the existing literature is fuelled by the lack of a theoretical model which analyses the cause of chilling behaviour and the various elements that may influence it.The article examines under what circumstances a chilling effect is more likely. Such an analysis can help to delineate the types of cases for which a restrictive approach towards public authority liability is justified. Furthermore, the article discusses the available empirical research on the existence of chilling effects due to the liability for public authorities. The authors’ argue that the economic criteria are useful in explaining the contradicting findings in the existing empirical literature.