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THE BHOPALIZATION OF AMERICAN TORT LAW 105 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. Compensating Victims The problem remains: How do we attend to the needs of the tragic victims âthe unfortunate few who are injured by the whooping cough vaccine, or the FDA-approved IUD, or the EPA-approved toxic-waste dump? There are certain risks that are real, that have tragic consequences, and that must be socialized if only because the courts will not allow otherwise. It may seem perverse to insist on a generous social program to deal with the hazards of the whooping cough vaccine when we have only the stingiest social programs to deal with the hazards of whooping cough itself. But the judicial system has left no other choice. Once again, there are models outside the judicial process to be followed, and once again the lead in adopting these models must come from legislatures and executive branch officials. Two administrative compensation system models are already in place to be emulated. The first is worker's compensation: it addresses public risks falling toward the ''infinity-zero'' end of the spectrum, where broad exposure to the hazards is certain but in which the likelihood of consequences to any exposed individual is small. One may start by acknowledging some of the problems that worker's compensation statutes have encountered. Compensation schedules, for example, have not kept pace with inflation. There have been abuses under the worker's compensation statutes, most especially in the areas of causation. Faced with the "deep pocket" of an insurance fund, arbitrators and courts have been inclined to adopt very expansive definitions of what constitutes a "job-related" injury. Finally, worker's compensation schemes have been successfully bypassed, increasingly often, by lawyers and plaintiffs eager to play once again at the judicial gaming tables. Novel theories have been invented, for example, to bootstrap occupational injuries into "product liability" cases. Yet despite all the criticisms that have been raised against worker's compensation systems, they have worked tolerably well. It is inconceivable that any jurisdiction in this country will choose to return to the alternative of open- ended tort litigation that preceded the adoption of worker's compensation statutes at the turn of this century. Administrative compensation systems are correctable and can be corrected across the board, without recourse to expensive legal middlemen when problems develop. Thus the problems relating to "causation" and the definition of "on-the-job" injuries encountered by the present system are not beyond resolution, most especially within an administrative forum that can learn from experience. And the spillover from worker's compensation to product-liability litigation and other areas can be curtailed, most especially if similar administrative compensation schemes are developed around the boundaries of worker's compensation
THE BHOPALIZATION OF AMERICAN TORT LAW 106 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. statutes. In developing administrative compensation schemes for vaccines, drugs, and the like, worker's compensation systems can still serve as a valuable model. A second compensation model is the one embodied in the much-maligned Price-Anderson Act. This compensation system addresses hazards at the "zero- infinity" end of the public-risk spectrum, where exposure is very unlikely, but if it occurs it is likely to be in conjunction with a large and farreaching accident. Other activities presenting risks of this character (many of them considerably larger than the risks from nuclear power) include the operation of a chemical plant, gas pipeline, liquefied natural gas tanker, hydroelectric dam, and so on. If we are to use technologies that present this kind of risk at all, we should do so under a regime of definite and predictable disaster insurance. The insurance must establish a fund to be tapped in case of accident, delineate the rights of victims, identify a party with primary financial responsibility, provide for prompt compensation, and establish fixed limits on liability without which none of the other components will be accepted and the enterprises themselves will not be possible. Such schemes need not eliminate the adjudicatory function of the courts altogether, but they must, at a minimum, establish rules to streamline the proceedings and reduce incentives for tactical maneuvering and delay. The areas in which streamlined administrative compensation schemes are most suitable share several common features. First, there are areas where there is a pressing need to provide compensation to the victim (as distinguished from his lawyer) quickly and without a great deal of legal maneuvering. Tragic accidents attributable to vaccines, occupational hazards, nuclear power plants, and the like can be shockingly disruptive and difficult for the injured individual and his family. In this context, the ponderous compensation machinery provided by the conventional tort system is unacceptable: it moves too slowly, its outcomes are too unpredictable, and it diverts far too much to lawyers. Almost all nonlawyers who have watched the sordid legal maneuver over the tragedy at Bhopal, India, have been forced to wonder whether the system that the chemical industry now must use for dealing with the financial aspects of such accidents is as it should be. Most disinterested observers would agree that compensation in this area could and should have been paid quickly and distributed fairly without the legal wrangling we have witnessed. With a Price-Anderson Act for the chemical industry, $600 million would already have been paid. Second, industries that attract legislation often involve novel technologies and rare or unfamiliar hazards. The reason is simple: it is precisely in these areas that insurance is most difficult to obtain, not because the hazards are necessarily large, but because there is no actuarial record of real-world
