I was very pleased to learn that the book for entering first
years at Carolina Law was “A Civil Action.”
Like Professor Birckhead and many others, I first read this book over a
decade ago, and it is a pleasure to read it again. I have perhaps had more of
an interest in this book than even the other professors in the conversation
because my primary area of teaching and scholarship is in environmental law,
which is designed, in part, to control the effects of pollution on human
beings. As you get to the end of the book, you will hear more about the
parallel process of clean-up under federal environmental laws that is a
complement to the tort case brought by Schlichtmann.
I am also a Torts professor, and the case described in a
Civil Action is a torts case. Reading
the book for the first time made me reflect a good deal on the relationship of
torts to environmental law, and in fact inspired a vein of scholarship which I
will discuss in my next blog.
All of you will have a Torts class this year, and it is my
pleasure to give you a head start! A tort is a compensable wrong done by one
legal entity to another. As you will learn in depth, there are four elements
that must be met for a tort to occur. There must be a duty, a breach of that
duty, legal causation (cause in fact and proximate cause) and damages.
pointed out by one of the student comments this week, the biggest problem faced
by Schlichtmann is proving causation.
There are harmful chemicals that could be part of the water supply,
which would constitute a breach of duty; but were those chemicals the legal
cause, in particular a cause in fact, of the children’s leukemia? Did the toxic
chemicals get into the children in some way, and did they in fact produce
leukemia? Since each element of the tort must be shown as “more likely than
not,” this is a difficult burden with scientific uncertainty. Historically,
before the advent of the chemical industry post World War II, this is not a
kind of uncertainty that earlier torts had to deal with. So should torts change? In some
jurisdictions, there have been common law discussions of relaxing the causation
rule to compensate parties for “cancer risk increase” or “partial” causation,
but this is not the dominant view.
What then? Well, when
the common law doesn’t work, a legislature may choose to intervene. This is where we get our suite of modern
environmental laws, including the Resource Conservation and Recovery Act (RCRA)
and the Comprehensive Environmental Response Compensation and Liability Act
(CERCLA), which concern themselves with hazardous waste. However, both of these laws protect human
health only in preventing exposure, not compensation for it (despite CERCLA’s
title). So there is still an issue or problem.
In my next posting I will more fully explore one of the
fundamental principles which I believe underlies tort law and how that
influenced the creation and enforcement of environmental law. I will also look at what might have happened
had this case come at a different time, in particular, after the imposition of
liability under CERCLA for a clean-up.
Posted by Victor B. Flatt on Thu. July 18, 2013 3:57 PM