Hazards: Technology and Fairness (1986)

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THE BHOPALIZATION OF AMERICAN TORT LAW 90 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. 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 courtrooms. 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 definition "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 

THE BHOPALIZATION OF AMERICAN TORT LAW 91 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. 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 humanity, 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 lawyer 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