Hazards: Technology and Fairness (1986)

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THE BHOPALIZATION OF AMERICAN TORT LAW 101 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. "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 measure to protect the public health, and vaccination generally has been one of the greatest risk reducers of the century. Consumer products reduce aggregate 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 industry 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 of the 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-reducing 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 

THE BHOPALIZATION OF AMERICAN TORT LAW 102 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. 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 judiciary's 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 regulation is of a bilateral controversy for which the antisocial nature of the challenged 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 administrative 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 hazards requires close attention to both sides of the public-risk picture—risks incurred and risks averted, persons harmed and persons helped by the activity in question. The task, in other words, requires a "public" point of view on the problem.11 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 Administration, 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, perhaps even inevitable in the agencies, because their focus is a relentlessly public one.