Harms from Exposure to Toxic Substances: The Limits of Liability Law

Abstract

In the early 1980s, there was great optimism about the prospects for a dawning era of toxic harms litigation, arising out of a heightened sensitivity to public health and safety concerns. This new sensitivity had been manifested in the preceding decade through a whirlwind of political activity, highlighted by such landmark Congressional legislation as the Clean Air Act, the Federal Water Pollution Control Act, and the Occupational Safety and Health Act, and by the establishment of the Environmental Protection Agency. Along parallel lines, a singularly proactive judicial framework for strict products liability emerged in the mid-1960s from a series of California Supreme Court cases and the promulgation of the Restatement (Second) of Torts, section 402A. To some, the stage seemed set for ushering in a new era. In this brief overview, I begin by highlighting some of the key early developments in the toxic tort domain and the contemporaneous critical literature in the 1980s. I then offer some thoughts on the mixed success realized in the ensuing years, focusing on the limitations imposed on the new types of claims by the institutional structure of tort law, but at the same time noting the expansive themes in more traditional types of claims - such as duty to warn - as well as in aggregation strategies of a less formal character. In concluding, I raise the question of comparative institutional competence: Do more conventional regulatory strategies for controlling risks associated with toxic exposures offer greater promise as policy options?

Keywords: toxic harms