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Part 2 Equity and Compensation The five papers in this section discuss fairness in the management of technological hazards. The authors approach the issue from differ- ent perspectives, but in each case the ultimate goal is to define an outcome that represents, or a process that leads to, equitable distribu- tion of the risks and benefits of hazardous technologies. Eula gingham reviews genetic and life-history factors that contrib- ute to hypersusceptibility and the screening and monitoring proce- dures used-to identify individuals who are hypersusceptible to occu- pational hazards. She argues that society has an ethical obligation to provide all persons equal protection against avoidable health hazards. gingham recognizes, however, that economic or technical constraints may require industries to adopt special protective measures for hyper- susceptible workers; she defines three criteria that fair measures must meet. She concludes her essay with the caution that the most difficult task in providing special consideration for hypersusceptible workers will be to balance the right of protection from hazards with the right of access to jobs. Papers by Peter W. Huber and Daniel S. Hoffman discuss equitable legal remedies for victims of hazardous technologies. Huber describes the "Bhopalization" of American tort law a shift in the focus of U. S. tort law from "private" to "public" risks. He attributes this shift to an increasing regulatory and judicial reliance on uncertain 77
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78 INTRODUCTION TO PORT 2 data in assigning causation for particular outcomes to specific haz- ards. Huber argues that judicial compensation for hazard victims is inefficient and inequitable because of the shift in tort law. He pro- poses that decisions about compensation reside in administrative agencies and suggests several models upon which such a scheme could be based. While Hoffman is also concerned about equitable compensation for hazard victims, instead of suggesting that these decisions are inappropriately located in the courts, he recommends changing the factors that determine legal duty. Huber and Hoffman also disagree about legal remedies to ensure equitable distribution of penalties among potentially responsible parties. Hoffman insists that there should be mandatory allocation of damages among responsible parties, while Huber vigorously opposes a "proportional causation" rule of liability. The final two papers in Part 2 discuss fairness in the siting of hazardous facilities. Roger E. Kasperson presents an introduction to this topic, outlining key problems in siting decisions, providing a critique of approaches to siting hazardous facilities, and identifying the necessary components of a fairness-centered approach to this problem. He, like gingham, suggests that current geographic and demographic distributions of risk from technological hazards are not equitable. Howard C. Kunreuther describes incentive and compensa- tion systems that may be useful in siting facilities that present high- consequence, Tow-probability risks. But Kasperson and Kunreuther disagree about fairness in the allocation of resources between prevent- ing and compensating for hazards. Kunreuther argues that compensa- tioncanbe substituted for risk reduction. Kasperson, however, argues that compensation cannot restore potential victims to the condition they enjoyed before the hazard existed; thus, fairness requires that regulators first reduce hazards to the lowest practicable level before attempting to compensate potential victims.