The Politics of Toxic Tort Law

Abstract

Toxic tort law is one of the most dynamic areas of law, developing from the interplay of public and private laws, as well as the science and technology unique to modem times. In the span of two decades, courts have confronted and mastered a host of novel legal issues.

As a group, toxic tort cases demonstrate how legal norms governing responsibility for the consequences of "synthetic living" and technological failures reflect, in part, the conflict between the democratic and elitist ideals extant in our legal system.

This phenomena is hardly surprising. American private law consistently reflects the tension in classic liberal thought between competing ideals that often express themselves doctrinally in contradictory fashions. However, his struggle is especially apparent in relatively dynamic and developing areas of law, such as toxic tort law. Indeed, much of the history, as well as the future, of toxic tort law can be seen in this struggle.

Although toxic tort easel have existed for some time, only recently in the life of the law have the diverse set of judicial problems, arising from the relatively irresponsible handling of pollution and modem technology been recognized as giving rise to a distinct area of tort law deserving special doctrinal and practical attention. Studies of toxic tort law emphasize the civil justice system's discrete shortcomings in solving toxic tort problems. Problems involving statutes of limitations, causation, multiple defendants, and case management have been addressed individually and collectively. Although some law reformers complain about the need for legislative solutions, common law courts have been responding to concrete problems by developing a jurisprudence to deal with the unique features of toxic tort litigation. For example, common law courts have allowed recovery for a greater variety of injuries, eliminated many product identification problems associated with mass marketing, and ameliorated statute of limitations problems associated with multiple and time-delayed harms. Accordingly, recent scholarship recognizes the metamorphosis of traditional law to deal with specific issues of toxic tort law.

These and other legal developments enable us to perceive the impact of the toxic tort phenomenon on tort law, and the continual tension at work during this development. Only by examining how this tension has impacted that tacit dimension of fundamental assumptions about responsibility, injury, and causation consistent with traditional tort and constitutional principles, can we understand the dynamic legal changes being wrought by the conditions of modernity, changing circumstances, modem scientific understandings, and how tort law can proceed to develop responsibly in a rational and determinate manner.