Paul L. Caron

Wednesday, May 1, 2024

Morse: The Truth About Safe Harbors

Susan C. Morse (Texas; Google Scholar), The Truth About Safe Harbors, 92 Tenn. L. Rev. __ (2025):

Tennessee law reviewSafe harbors are everywhere in law. Safe harbors have a modest, gentle appearance. They provide by rule that particular facts comply with the law and will result in no penalty. They are otherwise silent.

This modest appearance conceals the possible deceptive qualities of safe harbors. As this Article explains, the implementation of safe harbors often harms those outside safe harbor boundaries, by treating their behavior as illegal even though the safe harbor does not say so. This collateral harm is especially likely when intermediaries implement safe harbors, because of monitoring costs, risk and uncertainty aversion, and multiple stakeholders.

Safe harbors’ deception arises in part from the incremental way in which safe harbors develop the law. The incremental development of law is not illegal, and safe harbors’ deception does not automatically invalidate them. But plaintiffs can claim standing to challenge a safe harbor if the facts show that the safe harbor caused an illegal harm, including through the actions of a third party. When a lawmaker intentionally uses a safe harbor to produce an illegal result, a court should invalidate the safe harbor, even if the safe harbor on its face does not break the law.

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