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THE BHOPALIZATION OF AMERICAN TORT LAW 100 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. engaged, instead, in large-scale social engineering. As such, their activities should be tolerated only if they offer efficient deterrence or fair compensation. 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 limitations 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 of the plaintiffs' bar grows steadily longer. For years, state legislatures have seen fit to place liability limits on employee tort recoveries from employers.1 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 pharmaceutical companies to ensure their participation in the swine flu vaccination program; currently, both Congress and the Reagan administration are looking 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 Protection Agency, 1983, A-27), cleaning up accidental discharges of oil and hazardous substances (33 U.S.C. 2210 (1982)), participating in "unusually hazardous or nuclear" activities on behalf of the Department of Defense,4 and participating in the Space Shuttle program (U.S. Environmental Protection Agency, 1983, A-26). Additional statutes that have codified liability limits or immunities include the Outer Continental Shelf Lands Act Amendments of 1978,5 the Deepwater Port Act,6 and the Trans-Alaska Pipeline Act.7 Two recent federal initiatives have advanced comprehensive proposals to curtail and standardize products-liability recoveries through prodefendant 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.10 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
