Epstein, Tort, and Sticking it to BP

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4 Responses

  1. Bryan Gividen says:

    SSRN quote of the decade: “This Article argues that we are not so far removed from our goat-hacking forbearers.”

  2. Matt says:

    Put more simply, one of the reasons we want tort law is so that those who it has hurt can stick it to BP for the harm they have suffered.

    I wonder if tort liability can do this very well in cases like this, where the harm is dispersed so widely. Suppose I had been planing on going to the beach in Pensacola Florida for a while, and maybe even booked a room or paid a deposit, but now my plan is ruined because of oil on the beach. Tort liability won’t really help me, because my loss is either intangible or else is such that, by the time I could bring a case, even if I could win I’d not be “made whole”- the time, expense, etc., even factoring out the uncertainty, wouldn’t be made up by any award I might get. Now multiply this by lots and lots of people hurt in somewhat similar ways, and we have all sorts of injury going uncompensated and harm going unpunished. (Class action might work for some of this, but not for lots, I think.) I am, in general, a fan of tort liability, but it has, I think, very real limits, and seems unlikely to do all that’s necessary in cases like this.

  3. Frank Pasquale says:

    I would add one more caveat re insurance-pricing-risks, which is suggested by Thaler’s NYT article:

    “A policy with some appeal might make drilling rights include a mandatory insurance policy with a big deductible, say $100 million, and a cap somewhere in the billions. In an ideal world, this would influence insurance companies to monitor risks closely. (But the recent experience with the American International Group reminds us that we do not live in an ideal world.)”

  4. Jacqueline Fox says:

    While the feast or famine risk of tort recovery is a very important problem that begs for a more reliable payment scheme in a case like this, another risk might be the role of judges in deciding if public policy is best served by crafting some degree of judicial protection for off-shore drilling. Historically, judges have, on occasion, taken a fairly robust stance that big business, and progress of a financial sort, is good for this country, and that some risk of even horrible harm has to be tolerated. See, for example, Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., where Posner protected chemical companies from strict liability when shipping dangerous chemicals by train through crowded metropolitan areas.