state law. Because tort law varies from state to state, it is not uncommon for different state courts to adopt conflicting approaches to some issues. Where this is true, this appendix does not attempt to summarize the law in every state, but evaluates the legal issues using the prevailing, majority viewpoint. Minority positions are highlighted only when they constitute a trend or are likely to be particularly compelling in the explosives context. Even where a uniform federal law applies—as is the case with constitutional questions—courts (both state and federal) frequently interpret the law differently. In such situations, the conflict is noted and an attempt is made to distinguish or reconcile the competing cases.
In essence, the committee's task was to determine the viability, feasibility, and practicability of the tracer technologies and regulatory controls mentioned above. To perform this function, the committee identified, quantified, and evaluated the respective costs and benefits for each approach. The legal analysis provided in this appendix was part of that process. For example, tracer technologies may be a benefit to law enforcement if the evidence they yield is both legally admissible in court and relevant to establishing the identity and/or guilt of the accused bomber. If, however, such technologies create insurmountable legal obstacles or loopholes that impede the prosecution of terrorists, then they would be viewed as posing a significant, albeit noneconomic, cost to law enforcement. The same type of calculus applies in the areas of civil liability and regulation. Any lawsuits precipitated by tracer technologies would present an obvious financial cost to those who make, distribute, store, sell, or use tagged explosives. And, while regulatory controls on explosive chemicals may have the beneficial effect of deterring some criminals from making bombs, such controls also may present significant costs to taxpayers and law enforcement if they are burdensome to implement and/or are susceptible to constitutional attack. The object of the ensuing discussion is to point out and critically assess the legal costs and benefits that are likely to attend each of the approaches under the committee's consideration.
The first modern, federal explosives legislation, known as the Federal Explosives Act,1 was adopted by Congress during the First World War. Administered by the Department of the Interior, this act could only be invoked upon declaration of war and thus was rarely put into effect. Congress created the first perennial explosives legislation as part of the Civil Rights Act of 1960.2 This act regulated, among other things, the importation, manufacture, distribution, storage, and possession of explosives, blasting agents, and detonators.3 Although violators could be subject to criminal punishment, the act's proof requirements were so burdensome that the statute was largely ignored by prosecutors and criminals alike.