William & Mary Business Law Review


William Burke


The Defense Base Act (“DBA” or “Act”) provides a no-fault, insurancebacked workers’ compensation mechanism for compensating private security contractors who are injured overseas. Critics of the Act allege that it should be fundamentally altered or replaced because combat zone work is uninsurable, the Act’s compensation is insufficient, and it is less efficient than the alternatives. This Note argues that, on the contrary, the DBA insurance market is functional and improving, its benefits are sufficient when viewed in combination with contractors’ other compensation, and it is a far more efficient compensation system than is offered by tort litigation. The flaws cited by the DBA’s critics are more likely a result of problems that are extrinsic to the Act. Not least of these are the risks posed by some inexperienced, unprofessional private military companies that are more dangerous for their employees and more likely to attempt to short-circuit the Act than are better-credentialed private military companies. Existing trade associations that carefully credential their members offer a potential solution: amend contracting regulations to require private security contractors to be certified by third parties like the International Stability Operations Association. This would allow the government to exclude the most dangerous actors from the market and send a strong standardizing signal to the industry.