Last month federal magistrate judge Thomas M. Coffin ruled that a lawsuit filed on behalf of 21 children and teenagers seeking damages from the federal government for its failure to fight climate change (enough) could go forward. His decision surprises many legal scholars, but Michael B. Gerrard, Director of the Sabin Center for Climate Change Law (I can’t resist the temptation to refer to King Canute!) commented,
It is the first time a federal court has suggested that government may have a constitutional duty to combat climate change, and that individuals can sue to enforce that right.
Time will tell how the case fares in the higher courts. I rather suspect it will fail. I certainly hope so. With all the disagreements among climate scientists and climate and energy policy experts about the extent and risks of human contribution to global warming and the efficacy and cost-effectiveness of any policies to mitigate it, a rational attribution of fault for climate change to the federal government (or any other entity, for that matter) would be next to impossible, as would proving that any particular harm someone claims to have suffered was caused by it.
But the case raises a significant question about tort and liability. For centuries tort law, at least in the British and American tradition, was based on the notion that to recover damages a plaintiff must prove that the defendant had caused his loss—and usually that the defendant had done so either intentionally or at least negligently.
But in the 1930s and 1940s, some law professors, especially Yale’s Fleming James, embracing a Marxist understanding of law as an instrument of class warfare, spurred what U.S. Assistant Attorney General Richard K. Willard Willard in 1987 called an “assault on traditional fault-based tort law.” Fleming “felt that since accidents were inevitable, employers, manufacturers, and society as a whole, ought to bear the cost. They were, in effect, obligated to compensate victims regardless of who was at fault. ‘Social insurance,’ not fault, was to be the focus of the new tort law.”
What this amounts to is, in Willard’s terms, “risk-spreading as social policy,” backed up by legal judgments that frequently look more at a plaintiff’s financial distress and a defendant’s ability to pay than at real or imagined fault in someone’s loss. A defendant with large financial resources—a wealthy doctor, a large business, a school board, or a municipality—has what lawyers call “deep pockets.” Such defendants “are generally assessed much more in damages than others,” as lawyer and Heritage Foundation policy analyst James Gattuso put it.
Gattuso said the “problems in the tort system stem from its failure to differentiate between meritorious and unmeritorious claims and to allocate costs fairly.”
The problems have only grown since then, so that today the courts function in large measure as instruments for the redistribution of wealth. Proving actual causal connection between a defendant’s actions and a plaintiff’s loss; proving that the defendant was either malicious or at least negligent in its action; and even proving that the plaintiff has actually suffered a loss because of the defendant’s action—none of these is necessary in many tort cases today, and certainly none would be provable with regard to these children and teenagers’ lawsuit against the federal government.
At the risk of running a little far afield, let me pass on here Gattuso’s eight recommendations for the reform of tort law—recommendations as wise and applicable today as they were twenty he made them twenty years ago:
- “Give more weight to manufacturer’s warnings to plaintiffs.” If an injury results from ignoring a manufacturer’s clear warnings, the manufacturer’s liability should be significantly reduced or even negated.
- “Restore abuse, alteration, and misuse of a product as sound defenses in product liability cases.” When a bodybuilder ties a refrigerator to his back, runs a footrace, and suffers injury when a strap comes loose, the refrigerator and strap manufacturers should not be held liable (as they were in one case!) for the injury stemming from misuse of the product.
- “Define ‘foreseeable’ injury in a more rational manner.” It makes no sense to hold a college liable (as one court did) for a student’s injuries when someone hides in campus shrubbery, jumps out, and attacks him, merely because, with 20/20 hindsight, one can allege that the college should have foreseen that the shrubs might provide a good hiding place for a mugger. Neither does it make sense to hold a hospital liable (as another court did) for injuries a doctor sustains when mugged in its parking lot—particularly when no other mugging had ever occurred there.
- “Limit ‘noneconomic’ damages.” Require full compensation for economically measurable damages, but put some standard limits on damages for “grief” or “pain and suffering,” which in some cases far exceed the economic damages awarded by juries.
- “Pay punitive damages to the court.” Currently many juries award “punitive damages,” supposedly on the grounds that they deter future negligence, out of sympathy for a needy plaintiff. Making such damages payable to the court would remove the sympathy motive for higher-than-reasonable penalties while still ensuring that the plaintiff received just compensation for his loss.
- “Modify ‘joint and several liability’ rules.” When several defendants are found jointly liable for an injury, they should be assessed in proportion to the degree of their fault and the degree to which their action (or product) contributed to the plaintiff’s loss. Currently, if a defendant with small resources is found 90 percent at fault and one with huge resources is found 10 percent at fault, the latter can still wind up paying most or even all of the damages, merely because it has “deep pockets.”
- “Modify ‘comparative negligence’ rules.” Under current practice, someone might suffer injury due primarily to his own negligence but still be compensated for the entire loss by someone else whose very slight negligence contributed ever so little to the loss. “The problem with the comparative negligence standard could be reduced by the adoption of a new rule under which a plaintiff is not to collect from a defendant less at fault than the plaintiff himself,” Gattuso suggested.
- “Pay attorney’s fees to the winning party.” No one should be financially injured in a suit in which he is found not at fault. Neither should someone bringing suit have to devote a large part of his just compensation to the cost of litigation. The loser in liability litigation should have to reimburse the winner for legal fees.
Until these or similar reforms of America’s tort liability practices occur, Gattuso said, the system will continue to have “more of the hallmark of a lottery to enrich plaintiffs and their lawyers, rather than of a means to right wrongs.”
Applying these rules to environmental tort actions could bring some sanity to an arena marked by insanity.