Hazards: Technology and Fairness (1986)

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THE BHOPALIZATION OF AMERICAN TORT LAW 108 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. vides some compensation to capriciously chosen, nonvictim members of the public and a great deal of compensation to systematically self-selected members of the legal profession. The expansion serves as a poor—indeed often counterproductive—regulatory system: tort law provides no vehicle for systematically selecting and disfavoring worse performers in the public-risk market from better ones. But perhaps most troubling of all, the new tort law undermines the process of democratic self-government. The Constitution itself embodies a vision of the courts as the retrospective retailers of justice and the political branches of government as the prospective wholesalers. Legislatures and agencies are broadly disqualified from doing the types of things courts traditionally do: singling out individuals for special benefit or burden (barred by the Bill of Attainder Clause) and administering retrospective punishment (barred by the Ex Post Facto Clause). Until recently, activities of the courts were confined by mirror-image restraints found in the constitutional requirement that the courts resolve only "cases" or "controversies"—the courts had to operate retail, and they had to operate more or less retrospectively. These divisions of authority make good sense: courts do well in administering retail, corrective justice; only the political branches, on the other hand, are qualified to make wholesale public policy. The new tort law, and the entire vision of "public law" adjudication that animates it, is politically dangerous. It removes the most controversial social issues from the arena in which controversy can be brokered and tensions diffused through the very process of political participation. The legal system is adversarial; the answers it provides are often grudgingly accepted, but rarely leave participants satisfied that the system is reachable and open for change another day. Judges are—by deliberate constitutional design—isolated, remote, not accountable to the electorate. These are valuable assets for decision makers engaged in protecting civil rights, protecting minorities, resolving private disputes, and umpiring the democratic process. But they are grave liabilities for decision makers who would address and determine the broadest terms of the social contract. Our choices of "acceptable" public risks, and the decisions we make to compensate—or not to compensate—for the harms that may attend these risks, ultimately must be made in the political arenas. Choices of this kind that are made anywhere else will not, in the long term, prove acceptable to people who have grown accustomed to governing themselves. NOTES 1. Predictably, however, trial lawyers have begun to find their way around these limits by bringing suits against product suppliers and manufacturers rather than against the employers themselves. See, e.g., Kajala v. Johns-Manville Prods. Corp., 523 F.2d 155 

THE BHOPALIZATION OF AMERICAN TORT LAW 109 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. (8th Cir. 1975). Courts that believe this is not liability "against" the employer are engaged in self-delusion. Employee awards against manufacturers will be channeled back to employers quickly enough, by means of manufacturer demands to employers for indemnity, insurance, or a risk premium on the products that they sell. See 7 U.S. Department of Commerce, Interagency Task Force Report on Product Liability 75–77 (1977). At least one state, Connecticut, has responded by requiring worker's compensation awards to be set off against verdicts or settlements against product manufacturers. 1979 Conn. Pub. Act 79-4 83, §11(b). 2. The original agreement is contained in the Warsaw Convention, 137 L.N.T.S. 11 (1929). 3. See 42 U.S.C. §2210 (1982). 4. See 50 U.S.C. §1431 (1982); Executive Order 10,789, 23 Fed. Reg. 8897 (1958). See also Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666 (1977) (immunity for suppliers of materials to government where government itself enjoys immunity). 5. Public Law 95-372, 92 Stat. 629 (see §304(b)(1), liability limit) (codified as amended in scattered sections of 43 U.S.C.). 6. 33 U.S.C. §§1501–1524 (1982) (see §18(d), liability limit). 7. Sec. 204, 43 U.S.C. §1653(a)(2) (1982). 8. For a summary of recent attempts at federal legislation, see Kircher, Federal Product Legislation and Toxic Torts: The Defense Perspective, Villanova Law Review 28:1116 (1983); Phillips, The Proposed Federal Product Liability Statute from the Toxic Tort Plaintiff's Perspective, Villanova Law Review 28:1156 (1983); Schwartz & Means, The Need for Federal Product Liability and Toxic Tort Legislation: A Current Assessment, Villanova Law Review 28:1088 (1983); Twerski, National Product Liability Legislation: In Search For the Best of all Possible Worlds, Idaho Law Review 18:411 (1982). After extensive study, the Commerce Department proposed a Uniform Product Liability Act (UPLA) as a model for state legislation; parallel federal legislation has also been submitted to Congress. See S. 2631, 97th Cong., 2d Sess. (1982). The bill was reported on favorably by the Senate Commerce Committee in October 1982 but was not passed by the Senate. It was reintroduced in the 98th Congress. See S. 44, 98th Cong., 1st Sess. (1983). The springboard for federal action was a study conducted by an interagency task force. The report criticized contemporary tort law for failing to develop a clear standard of responsibility, imposing liability when the product has been misused or altered, failing to apply standards of comparative fault, failing to provide for contribution or indemnity among tort-feasors, imposing liability for design defects beyond the technological state of the art, imposing liability for unknowable risks, and imposing lingering liability beyond the expected useful life of a product. Numerous state legislatures have followed up on the federal initiative. See Ghiardi, Products Liability—Where is the Borderline Now?, Forum 13:206, 212 (1977). 9. See Department of Defense Authorization Act of 1985, §631, P.L. 98-525, 98 Stat. 2492, 2646 (1985); see Taylor, New Act Restricts Atomic Test Suits, N.Y. Times, Nov. 4, 1984. All lawsuits must be brought, instead, against the federal government under the Federal Tort Claims Act. 28 U.S.C. §2674 (1982). The new legislation eliminates jury trials, punitive damages, and other advantages of state law adjudication that had prompted more than a hundred lawsuits by veterans and others against the contractors. 10. See H. R. 7089, 96th Cong., 2d Sess. (1980). 11. It requires, in addition, technical resources that the courts do not possess. See, e.g., M. Wilkey, Activism by the Branch of Last Resort: Of the Seizure of Abandoned Swords and Purses 10–12 (1984); Muntzing, The Courts and Energy Policy in the Judiciary in a Democratic Society 140 (L. Theberge, ed., 1977).