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The Bhopal~zation of American Tort Law PETER W. CUBER Since 1960, American tort law has undergone a revolution that can be accurately (if somewhat disrespectfully) described as a mad scramble by the Trial Lawyers of America to keep pace with the National Academies of Engineering and Sciences. New legal arguments have been prepared, tested, honed, and developed on a wide variety of accidents, nonaccidents, ill- nesses, and cures. Bendectin, Agent Orange, Love Canal, Three Mile Island, the Dalkon Shield, and the pertussis vaccine have all figured in the training. The transformation, in a nutshell, has consisted of shifting the focus of American tort law from "private" risks to "public" ones. And the prime mover has been science: the radical changes in tort law are traceable to equally radical improvements in the science of hazard identification and risk assessment. But not science alone, because the courts have often not been successful in recognizing where science ends and other bodies of learning or ignorance begin. Thus, trans-science (Weinberg, in this volume), non- science, and a generous dose of sheer nonsense have also figured promi- nently in the tort law's expansion from the narrow world of private hazards to the universe of public ones. But though the tort system's reach has been greatly extended, the system has yet to demonstrate that with public risks it offers useful deterrence, fair compensation, or a needed vehicle for resolving festering social disputes. An abbreviated version of this paper appears in Issues in Science and Technology vol. 2, no. 1 (Fall 1985):73-82. 89
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90 PETER ~ HUBER Legislatures are increasingly looking outside the tort system for mechanisms to accomplish these important objectives more effectively. TORT LAW, OLD AND NEW The term public risks refers here to risks that are centrally produced or mass-produced, broadly distributed, often temporally remote, and largely outside the individual risk bearer's direct understanding and control the hazards of large-scale electric power plants, air transport in jumbo jets, mass-produced vaccines, chemical additives in food, hazardous wastes, and recombinant-DNA technology. These risks generally have a zero-infinity character either the likelihood of harm to any individual is minuscule but the likelihood of exposure is very large (as with pollution), or the likelihood of exposure is small but the likelihood of widespread harm (should exposure occur) is large (as with a nuclear power plant accident). Private risks, by contrast, tend to fall in more familiar ranges of the probability-consequence spectrum. They are discretely produced, localized, personally controlled, or of natural origin, and often immediate in their effects the risks of cottage industries, wood stoves, transportation by car, and the like. The "old" tort law revolved around private hazards and thus touched a relatively narrow range of human activities. It focused on correcting clear injustices and resolving disputes. And it maintained this focus by hewing strictly to two general requirements: a tort dispute had to be bipolar, and it had to be timely. These two overarching principles gave birth to a multitude of subsidiary rules and requirements. In the past 25 years, most of these have been either eroded beyond recognition or entirely discarded. Bipolarity Old tort law insisted, first of all, that a dispute be bipolar. Of course a lawsuit cannot proceed with fewer than two parties. But under the old tort law you generally could not have more than two either. There were a few well-established exceptions to cover third-party claimants, joint tort- feasors, and so on. But the general rules strongly disfavored crowded court rooms. In addition, under the old tort law the parties had to have character. The plaintiff had to be someone special someone specially injured. Under the old law of "nuisance," for example, the private individual simply was not permitted to sue for anything in the nature of a "public" nuisance. If the hazard was diffuse, broadly shared by the community, then it was by defini- tion "public," and no private individual could sue. To bring a private lawsuit you had to prove a special injury to you personally something out of the
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THE BHOP~LIZ'ION OF MICE TORT ~ ~ 1 ordinary, an injury to your land, or to other private interest, an injury not largely shared by the community as a whole. If everyone in the community suffered more or less equally, the presumption was that no one suffered at all unless a government official (typically a public prosecutor) determined otherwise. Under the old tort law the defendant had to have character, too. His distinction was that he had to be the identified, demonstrated source of the plaintiff's injury. The plaintiff was required to show that this particular defendant more likely than not caused that particular injury. Just as the plaintiff had to distinguish himself from the gray mass of suffering human- ity, so the defendant had to be distinguished from the mass of humanity's oppressors. If there was only a 1 percent chance that I caused your cancer, you could not sue me successfully. These rules limited the reach of tort law very considerably. They confined tort litigation to the resolution of narrow, bipolar disputes. The old tort system was quite comfortable with car accidents but not with such things as pollution. Times have changed. The "new" tort law is perfectly happy to take on multiparty disputes of every description. Plaintiffs' class actions, to start with, have become routine. This allows plaintiffs to consolidate numerous small injuries into one large one. It is not uncommon for class actions to embrace tens of thousands and sometimes millions of plaintiffs. An asbestos-related insurance dispute in California has been conducted in a large college auditorium the space is needed simply to provide room for tables for the myriad lawyers involved. The evolution of the enormous lawsuit can be gauged, somewhat indirectly, by the large body of solemn, scholarly, and judicial literature addressing what obligations (if any) a law- yer initiating such litigation may have to notify his "clients" of the very existence of "their" lawsuit. And as the recent Agent Orange settlement is now demonstrating, distributing the damage awards that may be won in such suits can require administrative facilities and technical expertise comparable to those typically available only to a large city or state government. Things have become equally crowded on the defendants' side of the auditorium. In one recent settlement, more than 150 companies were involved in a tentative agreement to clean up a toxic waste dump. The California litigation involving the drug commonly called DES introduced the radical concept of "market share" liability, which allows plaintiffs to sue undifferentiated groups of defendants without ever working out exactly which defendant caused whose injury. Under this rule of law, defendants are simply held liable in proportion to their share of the market in the drug or other product at the time the harm occurred. A similar concept is codified in the Price-Anderson Act (42 U.S.C. 2210) (and may be significantly
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92 PETER ~ HUBER expanded when the act is renewed in 1986J all nuclear operators will share in the liability if there is an accident at any one of their plants. The most radical change in the new tort law is one still gleaming in the eyes of various legal commentators but a moderately serious prospect nonethe- less. Powerful forces are pushing, often to receptive audiences in the courts and legislatures, for what has been called a "proportional causation" rule of liability. This would permit me to sue you for my cancer if I could show even a 1 percent likelihood that your power plant in fact caused it. Notwithstand- ing the 99 percent probability in your favor, I would still recover but only 1 percent of my actual damages. One percent, that is, plus or minus the usual slack allowed by the tort system which seems to be several hundred per- cent, at least. Under the old tort law, by contrast, I would not collect at all unless I established a causal link between your conduct and my injury that exceeded 50 percent; once that threshold was exceeded, I would recover my full damages. Timeliness The old tort law also had a rigid sense of timeliness. A tort action could not be brought too early. Nor too late. Premature actions were simply dismissed without prejudice to the plaintiff's right to sue again later. Stale actions were dismissed once and for all. Some of the details are worth reviewing. Tort law does and for a long time has-entertained prospective actions for injunctive relief. These are actions designed to cut off a course of danger- ous conduct before it culminates in actual harm. Under the old tort law, if you could really show that I was on the brink of doing something terribly, imminently, and irreparably damaging to your interests, you could get an injunction to stop me. But if I was anywhere short of the brink, or if the consequences were anything short of irreparable, no injunction would issue. You (the plaintiff) had to wait for the harm to occur; only then could you sue me for money damages. The rationale was simple enough: what may appear to be a real threat of harm often is not, and litigation postponed will often be litigation avoided altogether. Thus, for example, in an 1885 English case (Fletcherv. Bealey), the court rejected an injunction plea from a downriver paper plant whose owner was worried about an upstream chemical manufacturer's wastes being piled at the edge of the river. There was no dispute that the wastes would be injuri- ous; the only question was when, if ever, they would enter the river. The court ruled that the harm was not demonstrably imminent and that, there- fore, no injunction should issue. This rule was widely followed in the American courts, and the rationale for embracing the rule on this side of the Atlantic was clear enough. Article III of the Constitution restricts courts to
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THE BlIOP~LIZ'ION OF ~M~1C~N TORT ~ 93 deciding "cases or controversies" disputes, in other words, that have reached a certain level of ripeness. And American courts of that era were willing to accept the idea that if the wrong lies too far in the future the court's order will necessarily be speculative and prone to error. Under the old tort law, a would-be plaintiff could not bypass the strict rules against premature injunctions by asking for premature money damages, either. Negligence "in the air" was emphatically not actionable. Actual loss or damage was an essential element of the cause of action; in all but the most exceptional cases, the threat of future harm, as yet unrealized, was not enough. You could not, in other words, sue for damages alleged to be caused by exposure to risk itself. There were some minor exceptions to cover cases where the exposure to the risk caused present damage to land values and so on, or where the defendant's conduct created such acute and broadly shared fears in the community that the courts felt it appropriate to intervene. But these exceptions were narrow. A tuberculosis hospital, for example, located in a proper place, was not an actionable nuisance. Finally, under the old tort law a plaintiff was not permitted to sue too late, either. Once he had been injured, a plaintiff typically had about one to three years to bring his damage action. This limitation period applied regardless of when he discovered that he had been injured. If the discovery came after the expiration of the period, it was simply too bad for the plaintiff. In short, the old tort law saw timing as a critical factor in litigation. Except in rare cases, the law embraced two limiting presumptions: first, that only time would tell if a risk was real enough to be worth a lawsuit; and, second, that time would heal all wounds without the help of the legal system. Today, time is not what it used to be. Through one legal vehicle or another, risks are being litigated earlier and earlier. And also later and later. We have established, to start with, comprehensive administrative licens- ing systems for such things as drugs, food additives, nuclear power plants, hazardous waste dumps, aircraft, new chemicals, and the like. In a series of creative interpretations of the law, judges have declared that statutes such as the Administrative Procedure Act and the National Environmental Policy Act grant the courts broad authority to review those licensing decisions critically just as soon as they are made. For example, in Scientists ' Institute for Public Information, Inc. v. Atomic Energy Commission, a panel of judges decided that they had authority to block research on the fast breeder reactor not the reactor itself, but the research program going on behind it- because in the long term such research might shape energy policy and so have a "significant impact" on the environment. Moreover, every time a standard-setting agency such as the Environmental Protection Agency (EPA) or the Occupational Safety and Health Administration (OSHA) sets a new health-based standard, the underlying risk assessment (if any) is imme
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94 PETER ~ HUBER diately subject to challenge in the courts, regardless of how temporally remote the harm at which the standard is directed. There is still a concept of "ripeness" in administrative law litigation of this type, but it has grown pathetically weak. Similarly, tort plaintiffs seeking injunctions against what they view as unacceptably risky activities are no longer required to establish that harms are imminent. There is not the slightest doubt that an American court would be prepared to issue the Fletcher v. Bealey injunction today. Judges and lawyers may still pay lip service to "imminent harm" standards of yester- year, but in fact almost any activity, no matter how remote the harm that it threatens, can qualify. The "window of opportunity" for bringing actions for money damages has opened even wider. Such actions can now be brought much later than was formerly allowed, and the evolving trend is to entertain them much earlier as well. At the front end, prominent legal commentators and judges are proposing to make the exposure to risk itself a compensable injury. In a nutshell, I could sue you for operating a nuclear power plant or a chemical factory in my neighborhood, and I could recover. How much? I could recover the present actuarial value of the injury you might some day cause me. We would take the Rasmussen report on reactor safety, say, multiply the 10-7 estimated risk of accident during the plant's life by the 10~ dollar value of the conse- quences and distribute the proceeds among the 104 who might collectively suffer those consequences. No, not quite: the recovery would be distributed among 104 plus one recipients. The lawyer who brought this inspired action would surely get a healthy cut, too. If this seems utterly fanciful, the same scheme can be dressed up in different clothes, and there are many in the legal profession who are eager to serve as the tailors. Plaintiffs, it is argued, should be allowed to recover for the anxiety that exposure to risk can cause. In practical terms, this has much the same effect as suing for the risk itself the suit can be brought at any convenient time, long before the risk is translated into actual injury, indeed, long before anyone is sure whether the risk is even real. And this highlights the one big advantage of suing for anxiety instead of for the risk itself: anxiety levels unlike risk levels are within the exclusive control of the plaintiff. It has not escaped notice in the profession that clever legal work and good (that is, bad) publicity can create anxiety where none existed previously, and where none could be rationally justified by the hazard at hand. Damage actions are being brought later and later, as well. The other half of the plaintiffs' bar has been arguing (with considerable success) not that the injury occurs earlier than had been previously thought, but that it occurs
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THE BHOP~LIZ'ION OF MICE TORT ~ 95 much later. Thus, an increasing number of jurisdictions have adopted "dis- covery" statutes of limitation. These start the limitation clock running when the plaintiff discovers his injury, rather than when he was actually injured or exposed to the toxic agent. A variety of other new legal doctrines based, for example, on the defendant's alleged concealment of information relevant to the hazard have been successfully developed to extend by decades the period during which damage actions may be filed. The World in the Oyster It is these changes that have permitted courts to move from resolving "private" disputes to regulating "public" risks. Tort law's invasion of the enormous public risk territory perrnit:s almost everyone to sue almost eve~y- one any time and makes the chances of winning something, somewhere, better and better. The new tort system, to start with, can sweep into any particular risk controversy large fractions of a community, or the population of a state, or even the population of the country. With asbestos, Agent Orange, the Dalkon Shield, the whooping cough vaccine, and so on, tort lawyers can deal directly with hundreds of defendants and millions of plaintiffs; indi- rectly, they can affect millions more. If, for example, the vaccine industry folds under the current legal onslaught, the largest consequence will be felt by tomorrow's children individuals who have never been injured by a vaccine and who have never chosen to go to court. The new tort law's reach is greatly extended in time as well. It concerns itself with activities dating back to the 1930s and reaching forward for decades or (in controversies involving teratogens and mutagens) even generations. The Driving Force The enormous expansion in the reach of tort law might seem somewhat surprising, considering that the hazards of daily life have been decreasing steadily and significantly for reasons quite independent of the tort system. But the anomaly is easily explained. Tort litigation is definitely a supply-side industry. Its growth has been driven by the availability of information about hazards, not by the severity of the hazards themselves. Well-understood though comparatively trivial hazards are much more actionable than poorly understood but graver ones. Tort litigators' practices, in short, have expanded to embrace the science available: science's growing awareness and understanding of diffuse, low-level hazards; its steadily improving abil- ity to quantify very low probability events; its increased capacity to link old
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96 PETER ~ TUBER causes with new effects many decades later. This means that some excellent scientists have a lot to answer for. Bruce Ames, for one, has had a particularly mischievous impact in the legal world. It is very convenient for a lawyer representing a plaintiff who has (or fears he one day may have) cancer, to be able to label a toxin as an Ames-proven mutagen and therefore a likely carcinogen. Then the defen- dant's lawyer must begin quibbling (or so it will seem to the lay jury) about dose-response limits, nonzero thresholds, the ubiquity of all-natural carcin- ogens, and so on. And of course, Ames is not the only culprit. Many other scientists who have unraveled the etiology of cancer and various chronic illnesses and revealed the long lag times between exposure to a toxin and the onset of disease are responsible, far more than any lawyer, for the law's effective abandonment of statutes of limitation for damage actions and the "imminent harm" prerequisites for injunctions. Norman Rasmussen has been another major accessory before the fact in the creation of new tort law. Give me a scientist who is willing to put a number any number on a risk of dying, and I will give you a plaintiff's lawyer who is willing to wave that number in court. Then the defendant's lawyer must once again begin quibbling about the inherently self-negating aspects of risk assessment, the real purpose of conducting probabilistic risk assessment in the first place, the conservatism in the "source term," and so on. And again, Rasmussen alone should not shoulder all the blame. As the Nuclear Regulatory Commission has systematically identified, analyzed, and quantified the hazards of nuclear power plants, the plaintiffs' bar has licked its collective chops in anticipation of great meals to come. CAN THE LEGAL SYSTEM COPE? Understandably enough, many lawyers recognize the legal flood precipi- tated by these scientific storms as great progress for the profession. Expand- ing tort law hunting grounds (and extending the season to boot) gives law- yers and the courts enormous power to reshape the political and economic landscape. A separate question, however, is to determine who has benefited by this dramatic expansion in the demographic and temporal reach of tort law. Notwithstanding the most pious and self-serving claims ofthe plaintiffs' bar, and despite the startling support that tort lawyers have received from various "consumer protection" and "public interest" pressure groups, it increas- ingly appears that the principal and perhaps exclusive beneficiaries have been lawyers themselves, accompanied by only the tiniest group of self- selected or randomly selected consumers.
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THE BHOPAlLIZ~ION OF AMERICAN TORT L4lY Regressive Incentives 97 The common wisdom among those who would defend the operation of the new tort system is that while the system is a considerable inconvenience to corporate and technological America, it benefits consumers and the public at large. Tort law, it is said, allocates accident costs so as to promote the efficient ordering of the free market and so as to affirm the individual's right to personal security. The traditional judicial assumption is that the tort system protects the public by deterring risky activities. But science has taught that risk is everywhere, in absolutely everything we do or choose not to do. So undiscriminating deterrence of risk is now useless; the tort system regulates progressively only if it picks its targets accurately. Regrettably, however, the new tort system does not, and this, on reflection, is hardly surprising. The first and surely the largest problem is that the tort law delegates complex decisions to simple people. There is something magnificently right in leaving questions of criminal culpability to 12 good persons and true, pulled off the street more or less at random. But there is something pro- foundly silly in consulting this same group about the safety of drugs or nuclear waste reprocessing plants. To pick one recent and extreme example, the plaintiffs' bar has come close to saving Americans from the scourge of vaccination (Kitch, 1985) because judges and juries (unlike an almost unani- mous American medical community) are still undecided about whether the Sabin polio vaccine is preferable to the Salk, or whether whole-virus pertus- sis vaccine is preferable to a vaccine prepared from virus extract. This ambivalence has, of course, proved enormously expensive to manufacturers who followed Food and Drug Administration (FDA) requirements and sold the "wrong" alternative. But the more general lesson is that public risk analysis is difficult, and lawyers, judges, and lay juries are not well qualified to decide which technologies and activities represent sound, progressive risk investments. The tort system's risk preferences are further scrambled by the fuel on which it feeds. As we have seen, the system understandably favors as its targets risks that the scientific, parascientific, or plausibly pseudoscientific communities profess to know something about. Pseudoscience does not, of course, provide much rational ordering. And the great paradox when the tort system seeks to rely on real science a paradox that the system utterly fails to grasp is that the better the scientific information we have about a risk, the less serious the risk is likely to be. One reason is that new technologies, which are (on average) safer than the old ones they displace, come under much closer scrutiny in the administrative regulatory process. Another is
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98 PETER ~ HUBER that the more we know, the easier it is to protect against a risk in the first place. Thus, the tort system, driven primarily by the volume of risk informa- tion available, has a definite tendency to come down hardest where the deterrence it offers is least needed. Beyond this, the tort system selects its targets according to criteria that make them attractive to the average, contingency-fee lawyer. It therefore prefers risks that are lurid, that stem from especially new and (to the lay jury) unfamiliar technologies, or that engage socially and politically divi- sive issues and arouse strong public passions (Huber, 19851. Criteria such as these provide poor guidance in selecting objectively between good risks and bad ones. As a result, the new tort system brazenly fails to discriminate among the good, the bad, and the ugly in the public risk world. The biggest losers in the tort game are those who do not play at all. The traditional judicial assumption- and the only assumption on which the judicial-regulato~y machinery can operate is that in generously compen- sating the injured consumer the courts also protect the safety interests of other members of the public as well. This may well be true when the court deals with focused, comparatively grave private risks that can readily be identified as antisocial, such as drunk driving or hazardous conditions on land. But with diffuse, low-level, public risks, the balance between risk created and risk averted is much more subtle. Anyone can declare with confidence that drunk driving contributes unfavorably to the state of our risk environment. But it is much less easy to conclude the same of a somewhat risky vaccine, pesticide, or power plant that serves millions and adds both a small (per capita) quantum of risk and a quantum of risk reduction (perhaps smaller, perhaps larger) to our ambient environment. With public risks there often is, in fact, a sharp division between affirming the security interests of the public as a whole and tending to those who have been injured by the hazard in question. For many somewhat risky but in the aggregate risk-reducing-products and services that may be deterred by tort law activity, the interests of future consumers are directly opposed to those of unlucky prior consumers who have already been injured by the hazard in question. The injured obviously wish to be compensated, and a compassion- ate, generous society should surely respond. But compensation at the expense of the creator of the public risk will be against the interests of future consumers whenever the good that the risk attends removes more risk from the environment than it adds. In such cases the public security is best served by absolving the creator of the public risk from responsibility for the private injury, notwithstanding the fact that the private injurer is real and its cause is known.
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THE BHOP~LIZ'ION OF~M~IC~N TORTS Inefficient Compensation 99 The new tort law does not serve as an effective tool for compensating public-risk victims, either. One might think that the loss for the large, corporate defendants must be a gain for small, individual plaintiffs, and this is indeed a belief that the Trial Lawyers of America have cultivated with the greatest and most delicate care. But litigation is by no means a zero-sum game at least not until it is understood that lawyers themselves are always among the players and invariably among the winners. Study after study has revealed that the tort law is highly capricious, inefficient, unfair, and most of all, terribly costly. For every dollar that finally ends up in the pocket of an injured plaintiff, perhaps three to five are diverted to lawyers- lawyers for the plaintiff and defendant, judges, law clerks, expert witnesses, and miscellaneous other camp followers. "The tort system is, quite simply, an insurance scheme with astronomically expensive agents and middlemen. If a private insurance company pocketed 80 cents on every dollar collected, it would surely be prosecuted for fraud. Yet the tort system provides insurance at about that price. On top of this, many injured plaintiffs do not recover at all from Tort Law Insurance, Inc., while a quite unacceptable number of uninjured plaintiffs recover in large amount. The new tort system has a high degree of random- ness to it. This appeals to gamblers, of course, as well as to "house" employees who take their cut in any event. Insurance, however, is supposed to take the gambling out of life. Kindling the Flames Finally, the new tort law does not offer one useful social function that was certainly provided under the old tort law: resolving fresh, focused, bipolar disputes. Some method must exist for resolving civil controversies, and as a socio- logical matter it is probably best that ordinary two-person quarrels be resolved by neutral nonexperts and lay juries. Not because these traditional decision makers are more likely than specialists to render verdicts of Solo- monic insight and wisdom, but because they are most likely to be perceived by the public at large as accessible, moderate, and experienced with life's more ordinary vicissitudes. As a great judge once pointed out, it is often more important that things be settled than that they be settled right. The new tort law does not settle, it unsettles. When 3 million plaintiffs sue 60 defendants for something that happened 30 years ago or that may hap- pen 30 years from now-the courts do not deal with a "dispute." They are
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100 PETE ~ HUBS engaged, instead, in large-scale social engineering. As such, their activities should be tolerated only if they offer efficient deterrence or fair compensa- tion. As we have seen, the new tort law offers neither. The Writing on the Wall Courts, to be sure, have been reluctant to acknowledge their own limita- tions when it comes to prudent management of broad-ranging public risks. Recent judicial trends suggest that the courts generally believe that they are perfectly competent to resolve any public-risk question, no matter how large or complex. Congress and state legislatures, however, appear to be reaching precisely the opposite conclusion with increasing frequency. The list of activities legislatively insulated from the tender mercies ofthe plaintiffs' bar grows steadily longer. For years, state legislatures have seen fit to place liability limits on employee tort recoveries from employers. ~ The United States, along with 130 other governments, has determined that international civil aviation requires liability limits;2 likewise, nuclear power has been thought to require liability-limiting legislation.3 Congress granted tort immunity to pharma- ceutical companies to ensure their participation in the swine flu vaccination program; currently, both Congress and the Reagan administration are look- ing at proposals to limit manufacturer liability for all types of vaccination. Other activities that have been granted partial or complete tort immunity include cleaning up a hazardous waste dump (U.S. Environmental Protec- tion Agency, 1983, A-27), cleaning up accidental discharges of oil and hazardous substances (33 U.S.C. 2210 (19821), participating in "unusually hazardous or nuclear" activities on behalf of the Department of Defense,4 end participating in the Space Shuttle program (U.S. Environmental Protec- tion Agency, 1983, A-261. Additional statutes that have codified liability limits or immunities include the Outer Continental Shelf Lands Act Amend- ments of 1978,5 the Deepwater Port Act,6 and the Trans-Alaska Pipeline Act.7 Two recent federal initiatives have advanced comprehensive pro- posals to curtail and standardize products-liability recoveries through prode- fendant changes in rules of evidence and standards of conduct.8 And in 1984, Congress passed legislation retroactively barring lawsuits against private contractors who participated in the early atomic weapons testing program.9 Finally, Congress has recently considered a bill to provide a federal insurance system for "orphan" drugs. A The most striking feature of the long and steadily growing list is that it addresses activities that, in a more rational world, would entail medals of honor, not tort suits. Steady employment in almost any industry is much safer than living in the poverty that attends unemployment; indeed the
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THE BlIOPALIZ'/ON OF MICE TORT It 101 "healthy worker" effect is such a strong one that epidemiologists attempting to evaluate occupational health risks must expressly make allowance for it in their statistical studies of worker health. Nuclear power is demonstrably much safer than its main alternative-coal-fired generation. At the time it was enacted, the swine flu vaccination program represented a prudent mea- sure to protect the public health, and vaccination generally has been one of the greatest risk reducers of the century. Consumer products reduce aggre- gate risk in numerous but modest ways. And it is magnificently ironic to discover that tort immunities are needed for those who clean up hazardous waste dumps or oil spills, or who manufacture certain types of valuable drugs. Lawyers tend to react to liability-limiting initiatives with disgruntlement, recognizing perhaps that liability limits cut off lawyers' livelihoods. It is often suggested, especially in connection with nuclear power, that no indus- t~y marketing an "acceptably" safe product or service should require the protection of a liability limit; the very existence of such a limit indicates that the hazards ofthe activity are unacceptably high. The argument is laughable. Nuclear power, civil aviation, commercial drugs, and the like are creatures of science and engineering, and their risks are therefore both predictable and inherently self-limiting. Yet undertaking a venture that is financially sound considering the physical risk involved is often a pure gamble in light of what may happen in the courts. Immunities and liability limits are the public-risk equivalents of Good Samaritan laws; that they are required at all is a ringing indictment of the level of foolishness to which our contemporary tort system aspires. Something is dangerously wrong when a pharmaceutical company requires legislative protection before it will dare to manufacture a risk . ret ~uclng vaccine. THE AGENCIES AND THE COURTS The fact remains that the universe of public risk, and compensating victims for its injuries, cannot be left simply to the free market. Public hazards inherently require public control, and despite our unwillingness to socialize many natural risks, our society has been unwilling to leave the victims of many man-made hazards uncompensated. If the courts are not qualified to manage public risks, who is? The answer is painfully obvious to almost everyone outside the legal community administrative agencies, not the courts. Institutional Competence The spheres of competence for the courts and the agencies mirror the division between private and public risks. The courts perform adequately in risk regulation when they deal with private risks focused, high
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102 PE'[E:R ~ HUBER probability, bilateral hazards that have ripened (or are about to ripen) into substantial injuries. This class of risks is amenable to rational control through the retail, retrospective regulation that courts have traditionally supplied. The judiciaries competence in dealing with such risks cannot be questioned. The private dispute involving the realized risks of car accidents, slip-and-falls, hazardous conditions on land, and the like can find no better governmental forum for resolution than a court. No doubt the court fulfills some regulatory role in adjudicating tort suits of this nature, but the regula- tion is of a bilateral controversy for which the antisocial nature of the chal- lenged conduct can be ascertained with relative ease and certainty. In this private-risk setting, of course, the regulatory agency can be of little help. Constitutional difficulties would attend relegating this type of dispute to an administrative forum, and private-risk controversies are so common and varied that as a practical matter they inevitably will have to be resolved in trial-like proceedings presided over by generalist judges. The administra- tive agency is not needed here; the judicial arena already provides more or less the right forum for resolving social confrontations of this character. Precisely the opposite holds true for public-risk choices. The assessment of these diffuse, low-probability, multilateral, and temporally remote haz- ards requires close attention to both sides of the public-risk picture risks incurred and risks averted, persons harmed and persons helped by the activ- ity in question. The task, in other words, requires a "public" point of view on the problem. ~ ~ This is a perspective that public agencies can supply and that courts plainly cannot. The reasons are not difficult to discern. Beneficiaries of risk-reducing products and services do not litigate, and contingency-fee lawyers rarely seek them out as clients. The courts are thus not likely even to hear from those whose interests are a critical component of public-risk assessment. To be sure, the vaccine manufacturer or the operator of the nuclear power plant will attempt to serve as surrogate spokesperson. But industry serves poorly in this representative capacity, because it has every incentive to claim risk- reducing and other social benefits from its activities whether or not they exist. In contrast, regulatory agencies, such as the Food and Drug Administra- tion, the Environmental Protection Agency, and the Nuclear Regulatory Commission can ground their assessment of public risks on a comparison of the hazards of the alternative drug, pesticide, or power plant already on the market. Even in the agencies, comparative risk regulation is not all what it should be. But there are, at least, some promising signs here. Progressive movement toward more comparative risk regulation remains possible, per- haps even inevitable in the agencies, because their focus is a relentlessly public one.
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THE BHOP~LIZ'ION OF~M~IC~N TORTS 103 "Public law" adjudication in the courts, so eloquently described (in gen- eral terms) by Abram Chayes (1976), and by Joel Yellin (1981), David Rosenberg (1984), andothersl2 (with specific application to risk regulation), simply does not and cannot yield progressive choices among public risks. The public law model of judicial action is a grand design for haying lawyers decide everything everywhere. But in risk matters, at least, experience and common sense teach that the only beneficiaries are likely to be lawyers themselves. Deferring to the Experts What, then, are the courts to do with individual or class actions that seek redress from risk or injury caused by an IUD, vaccine, herbicide, morning sickness drug, nuclear waste reprocessing facility, or the like? A general prescription is less, not more. The courts should defer to the experts. These should not be experts summoned by the parties for the edification of the judiciary, however. The scientific community is large and heteroge- neous, and a Ph.D. can be found to swear to almost any "expert" proposi- tion, no matter how false or foolish. The expert public-risk choices that should be respected are those made by a risk-regulatory agency concerned with the public risk in question. This is not the current law. Judges, at present, generally feel quite free,. when addressing risk problems, to ignore prior administrative determina- tions regarding which public risks represent progressive choices. The Re- statement of Torts flatly declares that "compliance with a legislative enact- ment or an administrative regulation does not prevent a finding of negli- gence."~3 Many risk-related administrative statutes, such as the Consumer Products Safety Act, expressly announce that compliance with safety rules is not to serve as a shield from tort liability. ~4 When the statute is silent or even the least bit ambiguous on the question of tort-remedy preemption, the courts will always presume that no preemption was intended. is The Karen Silkwood decision, for example, announced that the operator of a nuclear facility can be assessed punitive damages despite complete compliance with applicable NRC regulations. And in Chevron v. Ferebee, a recent case from the D. C. Circuit Court of Appeals, a chemical company was held liable for "mislabeling" a can of paraquat, even though the label had been approved by the EPA and even though the manufacturer could not lawfully have used anything else only EPA had the legal power to change the label. In short, the settled judicial refusal to defer to agency choices among public risks has spawned a never-ending cycle of truly perverse risk- regulatory decisions. The FDA's experts may conclude after a careful examination of the substitutes that the Sabin polio vaccine is a better bet than
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104 PETER ~ HUBIER the Salk, or the NRC may conclude that a nuclear power plant is safer than the available alternatives. But a mass-exposure lawyer and an injured or merely frightened client can effectively overturn the expert judgments by finding what is almost too easy to find: a judge who is of the view that the courts have something useful to offer in these matters, and a sympathetic and well-meaning jury. The agency's blessing of the vaccine, or pesticide, or power plant is usually no more than a prelude to a second tier of regulation in the courts. The resulting you-say-yes-but-I-say-no pattern of public-risk decision making is routinely explained by the courts and often accepted by the agencies-on the ground that administrative regulation of risk is intended to set only a safety "floor"- a threshold of performance, a minimum definition of "acceptable" safety. Agencies will point out that they rely mostly on data furnished by the regulated industries themselves and therefore cannot and should not be viewed as the final arbiters of how much safety is enough. It is, of course, politically comfortable for agencies to preserve the tort system as a safety valve. When injuries do occur, the agency is grateful to see at least part of the victims' hostility directed at the regulatees. This rationalization forjudicial nondeference may make some sense when the administrative regulatory regime is casual or sporadic, as with consumer products. But it is wholly unpersuasive for comprehensively regulated industries. Vaccines, pesticides, aircraft, electric power plants, and the like all entail potentially enormous mass-exposure hazards. Precisely because they can create public risk of this nature, these products and services are also subject to the most searching and complete state and federal safety regula- tion. When that regulation reaches a favorable conclusion about a potentially hazardous technology, the conclusion must inevitably be based at some level on a conclusion that the technology represents some measure of progress or, at worst, no measure of regression in the risk market in question (Huber, 19841. Once that determination has been made by an expert licensing agency, the courts should respect it. Requiring- or at least strongly encouraging the courts to respect the comparative risk choices made by competent, expert agencies would inject a first, small measure of rationality into a judicial regulatory system Hat currently nans unchecked. The Nuclear Regulatory Commission's licensing of a nuclear power plans or reprocessing facility must be viewed for what it is considerably more, in other words, than a routine and irrelevant pleasantry to be forgotten as soon as the first tort plaintiff enters the courthouse. Regulatory agencies are equipped to make the risk compari- sons on which all progressive transformation of the risk environment must be based. It has always been true that ignorance of the law is no excuse. At present, knowledge of the law is no excuse either. It should be.
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THE BHOP~LIZ^ION OFAM~IC~N TORTS 105 Compensating Victims The problem remains: How do we attend to the needs of the tragic victims the unfortunate few who are injured by the whooping cough vac- cine, or the FDA-approved IUD, or the EPA-approved toxic-waste dump? There are certain risks that are real, that have tragic consequences, and that must be socialized if only because the courts will not allow otherwise. It may seem perverse to insist on a generous social program to deal with the hazards of the whooping cough vaccine when we have only the stingiest social programs to deal with the hazards of whooping cough itself. But the judicial system has left no other choice. Once again, there are models outside the judicial process to be followed, and once again the lead in adopting these models must come from legisla- tures and executive branch officials. Two administrative compensation sys- tem models are already in place to be emulated. The first is worker's compensation: it addresses public risks falling toward the "infinity-zero" end of the spectrum, where broad exposure to the haz- ards is certain but in which the likelihood of consequences to any exposed individual is small. One may start by acknowledging some of the problems that worker's compensation statutes have encountered. Compensation schedules, for example, have not kept pace with inflation. There have been abuses under the worker's compensation statutes, most especially in the areas of causation. Faced with the "deep pocket" of an insurance fund, arbitrators and courts have been inclined to adopt very expansive definitions of what constitutes a "job-related" injury. Finally, worker's compensation schemes have been successfully bypassed, increasingly often, by lawyers and plaintiffs eager to play once again at the judicial gaming tables. Novel theories have been invented, for example, to bootstrap occupational injuries into "product liability" cases. Yet despite all the criticisms that have been raised against worker's com- pensation systems, they have worked tolerably well. It is inconceivable that any jurisdiction in this country will choose to return to the alternative of open-ended tort litigation that preceded the adoption of worker's compensa- tion statutes at the turn of this century. Administrative compensation sys- tems are correctable and can be corrected across the board, without recourse to expensive legal middlemen when problems develop. Thus the problems relating to "causation" and the definition of "on-thejob" injuries encoun- tered by the present system are not beyond resolution, most especially within an administrative forum that can learn from experience. And the spillover from worker's compensation to product-liability litigation and other areas can be curtailed, most especially if similar administrative compensation schemes are developed around the boundaries of worker's compensation
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106 PETER ~ HUBER statutes. In developing administrative compensation schemes for vaccines, drugs, and the like, worker's compensation systems can still serve as a valuable model. A second compensation model is the one embodied in the much-maligned Price-Anderson Act. This compensation system addresses hazards at the "zero-infinity" end of the public-risk spectrum, where exposure is very unlikely, but if it occurs it is likely to be in conjunction with a large and far- reaching accident. Other activities presenting risks of this character (many of them considerably larger than the risks from nuclear power) include the operation of a chemical plant, gas pipeline, liquefied natural gas tanker, hydroelectric dam, and so on. If we are to use technologies that present this kind of risk at all, we should do so under a regime of definite and predictable disaster insurance. The insurance must establish a fund to be tapped in case of accident, delineate the rights of victims, identify a party with primary financial responsibility, provide for prompt compensation, and establish fixed limits on liability without which none of the other components will be accepted and the enter- prises themselves will not be possible. Such schemes need not eliminate the adjudicatory function of the courts altogether, but they must, at a minimum, establish rules to streamline the proceedings and reduce incentives for tacti- cal maneuvering and delay. The areas in which streamlined administrative compensation schemes are most suitable share several common features. First, there are areas where there is a pressing need to provide compensation to the victim (as distin- guished from his lawyer) quickly and without a great deal of legal maneuver- ing. Tragic accidents attributable to vaccines, occupational hazards, nuclear power plants, and the like can be shockingly disruptive and difficult for the injured individual and his family. In this context, the ponderous compensa- tion machinery provided by the conventional tort system is unacceptable: it moves too slowly, its outcomes are too unpredictable, and it diverts far too much to lawyers. Almost all nonlawyers who have watched the sordid legal maneuver over the tragedy at Bhopal, India, have been forced to wonder whether the system that the chemical industry now must use for dealing with the financial aspects of such accidents is as it should be. Most disinterested observers would agree that compensation in this area could and should have been paid quickly and distributed fairly without the legal wrangling we have witnessed. With a Price-Anderson Act for the chemical industry, $600 million would already have been paid. Second, industries that attract legislation often involve novel technologies and rare or unfamiliar hazards. The reason is simple: it is precisely in these areas that insurance is most difficult to obtain, not because the hazards are necessarily large, but because there is no actuarial record of real-world
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THE BHOP~LIZ'ION OF ~M^IC~N TORT ~ 107 accident experience-or of legal-world tort history, on which the insurance industry can rely. This is most clearly true with the emerging so-called toxic torts, which usually involve low-level, broadly distributed, long-latency- period risks. It is these two factors the need to expedite compensation to victims and the need to provide important industries with some measure of protection from the caprices of the tort system that have applied a steady pressure to legislatures across the country. Worker's compensation and the Price- Anderson Act are not anomalies; in an increasing number of areas they are serving as vital models. Perhaps the major risk in setting up new administrative compensation systems is that they may become the quintessential "deep pocket," favorite targets for nuisance actions and fraudulent claims. One vice in the present tort system is also a virtue the system is so terribly ponderous, slow, and unpredictable that it filters out some nonmeritorious claims through sheer inertia. But so-called Orangemail using the threat of a credulous jury to squeeze good money out of bad science is becoming a real problem even in the tort system. The problem might be magnified under a more streamlined administrative compensation system. Worker's compensation has, for example, been sought by the wife of an executive who suffered a heart attack while engaging in sexual relations with his secretary, and insurance funds set up under the Price-Anderson Act have been targets for nuisance suits. The only protection against this problem is the old-fashioned one: a claim- ant for funds must be required to show causation by the agent, or through the activity, that the insurance is supposed to cover. Perhaps not causation beyond a reasonable doubt, but at least causation established with a serious degree of scientific credibility. In addition, disaster compensation schemes can tee insulated from nuisance actions by provisions such as the "Extraordi- nary Nuclear Occurrence" threshold codified in the Price-Anderson Act: no payouts are permitted until some appropriate, high-level official has found that the alleged disaster was in fact a disaster. Plaintiffs' lawyers have been critical of the fact that the accident at Three Mile Island was not "extraordi- na~y" enough for Price-Anderson purposes. But then there has been much criticism in the scientific community of the fact that Bendectin and Agent Orange were thought to justify enormous tort settlements, notwithstanding underlying "evidence" of causation that ranged from the tenuous to the entirely fanciful. PUBLIC RISKS AND POLITICAL LEGITIMACY The expansion of tort law into "public-risk" areas provides a poor vehicle for compensating deserving victims of diffuse hazards, even while it pro
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108 ~ PETER ~ HUBJER vices some compensation to capriciously chosen, nonvictim members of the public and a great deal of compensation to systematically self-selected mem- bers of the legal profession. The expansion serves as a poor-indeed often counterproductive regulatory system: tort law provides no vehicle for sys- tematically selecting and disfavoring worse performers in the public-risk market from better ones. But perhaps most troubling of all, the new tort law undermines the process of democratic self-government. The Constitution itself embodies a vision of the courts as the retrospective retailers of justice and the political branches of government as the prospec- tive wholesalers. Legislatures and agencies are broadly disqualified from doing the types of things courts traditionally do: singling out individuals for special benefit or burden (barred by the Bill of Attainder Clause) and admin- istering retrospective punishment (barred by the Ex Post Facto Clause). Until recently, activities of the courts were confined by mirror-image restraints found in the constitutional requirement that the courts resolve only "cases" or "controversies" the courts had to operate retail, and they had to operate more orless retrospectively. These divisions of authority make good sense: courts do well in administering retail, corrective justice; only the political branches, on the other hand, are qualified to make wholesale public policy. The new tort law, and the entire vision of "public law" adjudication that animates it, is politically dangerous . It removes the most controversial social issues from the arena in which controversy can be brokered and tensions diffused through the very process of political participation. The legal system is adversarial; the answers it provides are often grudgingly accepted, but rarely leave participants satisfied that the system is reachable and open for change another day. Judges are- by deliberate constitutional design- isolated, remote, not accountable to the electorate. These are valuable assets for decision makers engaged in protecting civil rights, protecting minorities, resolving private disputes, and umpiring the democratic process. But they are grave liabilities for decision makers who would address and determine the broadest terms of the social contract. Our choices of "acceptable" public risks, and the decisions we make to compensate or not to compensate for the harms that may attend these nsks, ultimately must be made in the political arenas. Choices of this kind that are made anywhere else will not, in the long term, prove acceptable to people who have grown accustomed to governing themselves. NOTES 1. Predictably, however, trial lawyers have begun to find their way around these limits by bringing suits against product suppliers and manufacturers rather than against the employers themselves. See, e.g., Kajola v. Johns-Manville Prods. Corp., 523 F.2d 155
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THE BHOPAlLIZ¢ION OF AlMERIC~N TORT ~ 109 (8th Cir. 1975). Courts that believe this is not liability "against" the employer are engaged in self-delusion. Employee awards against manufacturers will be channeled back to employers quickly enough, by means of manufacturer demands to employers for indemnity, insurance, or a risk premium on the products that they sell. See 7 U.S. Department of Commerce, Interagency Task Force Report on Product Liability 75-77 (1977). At least one state, Connecticut, has responded by requiring worker's compensa- tion awards to be set off against verdicts or settlements against product manufacturers. 1979 Conn. Pub. Act 79-483, §11(b). The original agreement is contained in the Warsaw Convention, 137 L.N.T.S. 11 (1929). 3. See42 U.S.C. §2210 (1982). 4. See 50 U.S.C. §1431 (1982); Executive Order 10,789, 23 Fed. Reg. 8897 (1958). See also Stencel Hero Eng'g Corp. v. United States, 431 U.S. 666 (1977) (immunity for suppliers of materials to government where government itself enjoys immunity). 5. Public Law 95-372, 92 Stat. 629 (see §304(b)(1), liability limit) (codified as amended in scattered sections of 43 U.S.C.). 6. 33 U.S.C. §§1501-1524 (1982) (see §18(d), liability limit). 7. Sec. 204, 43 U.S.C. § 1653(a)(2) (1982). 8. For a summary of recent attempts at federal legislation, see Kircher, Federal Product Legislation and Toxic Torts: The Defense Perspective, Villanova Law Review 28:1116 (1983); Phillips, The Proposed Federal Product Liability Statute from the Toxic Tort Plaintiff's Perspective, Villanova Law Review 28: 1156 (1983); Schwartz & Means, The Need for Federal Product Liability and Toxic Tort Legislation: A Current Assessment, Villanova Law Review 28: 1088 (1983); Twerski, National Product Liability Legisla- tion: In Search For the Best of all Possible Worlds, Idaho Law Review 18:411 (1982). After extensive study, the Commerce Department proposed a Uniform Product Liability Act (UPLA) as a model for state legislation; parallel federal legislation has also been submitted to Congress. See S. 2631, 97th Cong., 2d Sess. (1982). The bill was reported on favorably by the Senate Commerce Committee in October 1982 but was not passed by the Senate. It was reintroduced in the 98th Congress. See S. 44, 98th Cong., 1st Sess. (1983). The springboard for federal action was a study conducted by an interagency task force. The report criticized contemporary tort law for failing to develop a clear standard of responsibility, imposing liability when the product has been misused or altered, failing to apply standards of comparative fault, failing to provide for contribution or indemnity among tort-feasors, imposing liability for design defects beyond the technological state of the art, imposing liability for unknowable risks, and imposing lingering liability beyond the expected useful life of a product. Numerous state legislatures have followed up on the federal initiative. See Ghiardi, Products Liability-Where is the Borderline Now?, Forum 13:206, 212 (1977). 9. See Department of Defense Authorization Act of 1985, §1631, P.L. 98-525, 98 Stat. 2492,2646 (1985); see Taylor, New Act Restricts Atomic Test Suits, N.Y. Times, Nov. 4, 1984. All lawsuits must be brought, instead, against the federal government under the Federal Tort Claims Act. 28 U.S.C. §2674 (1982). The new legislation eliminates jury trials, punitive damages, and other advantages of state law adjudication that had prompted more than a hundred lawsuits by veterans and others against the contractors. 10. See H.R. 7089, 96th Cong., 2d Sess. (1980). 11. It requires, in addition, technical resources that the courts do not possess. See, e.g., M. Wilkey, Activism by the Branch of Last Resort: Of the Seizure of Abandoned Swords and Purses 10- 12 (1984); Muntzing, The Courts and Energy Policy in the Judiciary in a Democratic Society 140 (L. Theberge, ea., 1977).
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110 PETIER ~ [IUBER 12. Other contributions to the debate include C. Perrow, Living with High-Risk Technolo- gies (1984); Bazelon, Science and Uncertainty: A Jurist's View, Harvard Environmental Law Review 5:209 (1981); Bogen, Public Policy and Technological Risk, 1980 Idea 37; Cohen, Innovation and Atomic Energy: Nuclear Power Regulation, 1966-Present, Law & Contemporary Problems 43:67 (1979); Kraus, Environmental Carcinogenesis: Regu- lation on the Frontiers of Science, Environmental Law 7:83 (1976); Merrill, Risk- Benefit Decisionmaking by the Food and Drug Administration, George Washington Law Review 45:994 (1977); Pierce, Encouraging Safety: The Limits of Tort Law and Gov- ernment Regulation, Vanderbilt Law Review 33: 1281 (1980). 13. Restatement(Second)ofTorts, §288C(1965). 14. Section 25(a) of the Consumer Products Safety Act provides: '~Compliance with con- sumer product safety rules or other mles or orders under this chapter shall not relieve any person from liability at common law or under State statutory law to any other person." 15 U.S.C. §2074(a) (1982). 15. The Supreme Court, for example, recently let stand a $4.75-million damage award against a manufacturer of a birth control pill in a suit brought by a women whose kidneys had failed after several years of using the drug. The manufacturer challenged only the $2.75 million in punitive damages that were awarded notwithstanding its complete compliance with regulatory requirements imposed by the FDA. Ortho Pharmaceutical Corp. v. Wooderson, 235 Kan. 387, 681 P.2d 1038, cert. denied, 105 S. Ct. 365 (1984). 16. The morning-sickness drug Bendectin, for example, continues to enjoy FDA approval; there is no scientifically credible evidence that Bendectin does anything except what it is supposed to: relieve the misery of morning sickness that can threaten the health of both mother and child. But Bendectin became such a popular target for tort lawsuits that its manufacturer withdrew the drug (the only such drug on the American market) and submitted to a $120-million class action settlement. This prompted even the New York Times, not known for its conservative views on risk-regulato~y matters, to editorialize: "With Bendectin . . . the law has made a devastation and called it a settlement'' (N.Y. Times, July 30, 1984, A20). REFERENCES Chayes, A.1976. The role ofthejudgeinpubliclawlitigation, Harvard Law Review 89:1281. Fletcher v. Bealey, 28 Ch. 688 (1885). Huber, P. 1985. Safety and the second best: The hazards of public risk management in the courts, Columbia Law Review 85 :277,317-320. Huber, P. 1984. The market forrisk, Regulation (March-April):33. Kitch, E. W. 1985. Vaccines and product liability: A case of contagious litigation. Regulation vol. 9, no. 3 (May-June): 11-18. Rosenberg, D. 1984. The causal connection in mass exposure cases: A '~public law" vision of the tort system, Harvard Law Review 97:851. Scientists'InstituteforPublicInformation, Inc. v. Atomic Energy Commission, 481 F.2d 1079 (D.C. Cir. 1973). U.S. Environmental Protection Agency. 1983. Background Report for the Indemnification Report to Congress. Office of Pesticides and Toxic Substances. Washington, D.C. Yellin, J. 1981. High technology and the courts: Nuclear power and the need for institutional reform, HaIvard Law Review 94:489.
Representative terms from entire chapter: