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THE BHOPALIZATION OF AMERICAN TORT LAW 95 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. much later. Thus, an increasing number of jurisdictions have adopted ''discovery'' 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 doctrinesâbased, for example, on the defendant's alleged concealment of information relevant to the hazardâhave 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 permits almost everyone to sue almost everyone 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; indirectly, 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 childrenâ 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 ability to quantify very low probability events; its increased capacity to link old
