Tort Law in the Era of Climate Change, Katrina and 9/11: Exploring Liability for Extraordinary Risks

44 Pages Posted: 16 Apr 2008

See all articles by Daniel A. Farber

Daniel A. Farber

University of California, Berkeley - School of Law

Date Written: April 13, 2008

Abstract

Tort cases generally deal with routine risks - the kind of risk that a person encounters as a result of driving a car or buying a product. These risks are also staples of the insurance industry. Today, however, society faces risks that threaten massive harms to large segments of the public. Such risks materialized with 9/11 and Hurricane Katrina, and may confront us with climate change.

The first part of this article is comprised of case studies of how the tort system has responded to catastrophic risks such as large-scale flooding, terrorist acts, and climate change. Liability approaches vary depending on the problem and jurisdiction, but there is at least no consistent pattern of immunity for those who have created catastrophic risks or failed to take reasonable precautions against them.

Part II examines how compensation for catastrophic risks could contribute to societal goals such as deterring undesirable risks and social risk-spreading. The risk-spreading goal is particularly important because of the reluctance of private insurers to cover such risks. Compensation, whether administrative or judicial, might also contribute to stronger risk prevention or mitigation, and under some circumstances would advance corrective justice.

Keywords: torts, catastrophic risks, liability, insurance

JEL Classification: K13, K32

Suggested Citation

Farber, Daniel A., Tort Law in the Era of Climate Change, Katrina and 9/11: Exploring Liability for Extraordinary Risks (April 13, 2008). UC Berkeley Public Law Research Paper No. 11211125. Available at SSRN: https://ssrn.com/abstract=1121125 or http://dx.doi.org/10.2139/ssrn.1121125

Daniel A. Farber (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall
Room 894
Berkeley, CA 94720-7200
United States
510-642-0340 (Phone)
510-642-3728 (Fax)

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