National Academies Press: OpenBook

Hazards: Technology and Fairness (1986)

Chapter: PUBLIC RISKS AND POLITICAL LEGITIMACY

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Suggested Citation:"PUBLIC RISKS AND POLITICAL LEGITIMACY." National Academy of Engineering. 1986. Hazards: Technology and Fairness. Washington, DC: The National Academies Press. doi: 10.17226/650.
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Page 107

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THE BHOPALIZATION OF AMERICAN TORT LAW 107 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. accident experience—or of legal-world tort history—on which the insurance industry can rely. This is most clearly true with the emerging so-called toxic torts, which usually involve low-level, broadly distributed, long-latency-period risks. It is these two factors—the need to expedite compensation to victims and the need to provide important industries with some measure of protection from the caprices of the tort system—that have applied a steady pressure to legislatures across the country. Worker's compensation and the Price-Anderson Act are not anomalies; in an increasing number of areas they are serving as vital models. Perhaps the major risk in setting up new administrative compensation systems is that they may become the quintessential "deep pocket," favorite targets for nuisance actions and fraudulent claims. One vice in the present tort system is also a virtue—the system is so terribly ponderous, slow, and unpredictable that it filters out some nonmeritorious claims through sheer inertia. But so-called Orangemail—using the threat of a credulous jury to squeeze good money out of bad science—is becoming a real problem even in the tort system. The problem might be magnified under a more streamlined administrative compensation system. Worker's compensation has, for example, been sought by the wife of an executive who suffered a heart attack while engaging in sexual relations with his secretary, and insurance funds set up under the Price-Anderson Act have been targets for nuisance suits. The only protection against this problem is the old-fashioned one: a claimant for funds must be required to show causation by the agent, or through the activity, that the insurance is supposed to cover. Perhaps not causation beyond a reasonable doubt, but at least causation established with a serious degree of scientific credibility. In addition, disaster compensation schemes can be insulated from nuisance actions by provisions such as the "Extraordinary Nuclear Occurrence" threshold codified in the Price-Anderson Act: no payouts are permitted until some appropriate, high-level official has found that the alleged disaster was in fact a disaster. Plaintiffs' lawyers have been critical of the fact that the accident at Three Mile Island was not "extraordinary" enough for Price-Anderson purposes. But then there has been much criticism in the scientific community of the fact that Bendectin and Agent Orange were thought to justify enormous tort settlements, notwithstanding underlying "evidence'' of causation that ranged from the tenuous to the entirely fanciful. PUBLIC RISKS AND POLITICAL LEGITIMACY The expansion of tort law into "public-risk" areas provides a poor vehicle for compensating deserving victims of diffuse hazards, even while it pro

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"In the burgeoning literature on technological hazards, this volume is one of the best," states Choice in a three-part approach, it addresses the moral, scientific, social, and commercial questions inherent in hazards management. Part I discusses how best to regulate hazards arising from chronic, low-level exposures and from low-probability events when science is unable to assign causes or estimate consequences of such hazards; Part II examines fairness in the distribution of risks and benefits of potentially hazardous technologies; and Part III presents practical lessons and cautions about managing hazardous technologies. Together, the three sections put hazard management into perspective, providing a broad spectrum of views and information.

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