The "Reshapement" (Third) of Toxic Torts?

Want some more evidence that at least with regard to toxic tort cases the Restatement (Third) of Torts is nothing of the sort but rather an effort by "the academy" to impose its vision of what the law ought to be? Read "The 'Reshapement' of the False Negative Asymmetry in Toxic Tort Causation".

The central premise of the paper is that for a variety of reasons the law has decided to err on the side of letting victims of toxic chemicals go uncompensated (a sort of "false negative") rather than letting errors of judgment fall with equal frequency on the wrongly accused (the false positives). However, unlike say the science surrounding breast cancer and mammography the author presents no data to demonstrate that there are more victims on the Plaintiff side of the ledger than on the Defendant side. Instead, he argues in essence that because science (as opposed, somehow, to plaintiffs' retained scientist experts) plays it safe and errs on the side of false negatives. By adopting such methods the courts then necessarily put a thumb on the "D" scale.

Of course the real reason epidemiologists, toxicologists and the like have learned to go slow in the face of uncertainty is that the proportion of false positives to false negatives was enormous throughout the 70s, 80s and 90s. Small relative risks and the peculiar metabolism of mice launched false health scare after false health scare. Contrary to what the author suggests the vast majority of positive findings have turned out to have been false - that's why coffee alone has been falsely implicated in more cancers over the last forty years than has human carcinogenicity been confirmed in all chemicals combined.

There's lots to dissect in the paper and we'll be doing so in coming days. One topic we'll hit is the effort to sneak the so-called precautionary principle into the law via Comment "c" of Section 28, Liability for Physical and Emotional Harm. See page 1572 for the author's approving nod to the effort which had previously been denied by the comment's reporters.

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