Hazards: Technology and Fairness (1986)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

THE BHOPALIZATION OF AMERICAN TORT LAW 97 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. Regressive Incentives 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 profoundly 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 unanimous American medical community) are still undecided about whether the Sabin polio vaccine is preferable to the Salk, or whether whole-virus pertussis 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 

THE BHOPALIZATION OF AMERICAN TORT LAW 98 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. 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 information 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 divisive issues and arouse strong public passions (Huber, 1985). 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- regulatory machinery can operate—is that in generously compensating 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 compassionate, 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 injury is real and its cause is known.