Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter.
Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.
OCR for page 89
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
OCR for page 90
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
OCR for page 91
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
OCR for page 92
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
OCR for page 93
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
OCR for page 94
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
OCR for page 95
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
OCR for page 96
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.
OCR for page 97
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
OCR for page 98
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.
OCR for page 99
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
OCR for page 100
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
OCR for page 101
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
OCR for page 102
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.
OCR for page 103
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
OCR for page 104
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.
OCR for page 105
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
OCR for page 106
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
OCR for page 107
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
OCR for page 108
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
OCR for page 109
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).
OCR for page 110
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:
public risks
