LL2-24 digest — Ch24 Protecting early warners and late victims#

Late lessons from early warnings II (EEA 2013), pp. 581–606 (PDF 583–608).

Who wrote it. Carl Cranor, a philosopher of law and science at UC Riverside. There are three supporting panels: - David Gee (EEA), on scientific support for early warners; - Owen McIntyre (UCC environmental law), on UK asbestos case law; - a summary of Robert Costanza’s 2010 argument for assurance bonds after Deepwater Horizon.

There is no industry, insurer or regulator voice, and no dissent.

Core argument#

This is not a case study. It is a normative legal-policy essay. Cranor accepts that ex ante administrative regulation comes “first and foremost” in a precautionary regime (p. 582), and proposes two supporting kinds of law: 1. Protection for early warners. Extend whistleblower law, on the US, UK and South African models, to scientists and others who warn of threats to health or the environment. Protection should turn on reasonable belief and good faith, not on being proved right. It needs secure channels, an easy prima facie case, an independent enforcement office, and possibly bounties (pp. 582–584). 2. Compensation that does not depend on proving fault, designed to reach victims quickly and so “minimise … and shorten” harm (p. 587). The chapter judges tort law “a poor legal model” (p. 589) and surveys alternatives (pp. 590–601): workers’ compensation, the US Vaccine Injury Compensation Program, the 9/11 fund, the UK radiation scheme, New Zealand’s no-fault accident scheme, and precautionary assurance bonds.

Key evidence#

• Tort’s burdens. Claimants carry the burden of proof. Post-Daubert admissibility rules “asymmetrically hamper plaintiffs” (p. 588). Some courts demand epidemiology showing a doubled risk. Damages are capped, cases are slow (Milward: 2007 to past 2012), and only about 4 % of clear malpractice victims even consult a lawyer (pp. 588–589).
• UK asbestos law (Panel 24.2). Fairchild relaxed the “but for” test for mesothelioma. Margereson found liability although mesothelioma was unknown to medicine at the time of exposure, because “some pulmonary injury” was foreseeable and the defendant was on actual or constructive notice of asbestos’s lung hazards, and extended the duty beyond the factory wall (pp. 591–593). The alternative is Graham v ReChem: 198 days of trial, lost on causation (p. 591).
• The UK radiation scheme (CSRLD). Pays on a sliding scale from 20 % probability of causation: 106 claimants, GBP 5.3 million. It works only because radiation has a long record of prior victims (pp. 598–599).
• Deepwater Horizon counterfactual (Panel 24.3). Damages estimated at USD 34–670 billion against a liability cap given as USD 50 million. The panel argues that a USD 50 billion bond would have given “very strong economic incentives” to cut risk or not drill (pp. 602–603). The panel admits the actual outcome was “pretty close to the ‘worst-case’”, so the exercise is run with hindsight.

Main mechanisms#

• Proof rules allocate the cost of uncertainty. Where causation is scientifically unresolvable, the loss stays with victims unless presumptions, probabilistic awards or reversed burdens move it (pp. 588, 591–593, 596–598, 600).
• Latency and disappearing firms make after-the-fact liability hard to collect. This is the case for money secured in advance (pp. 592, 596, 601).
• The first recognised harm is rarely the last. Liability can attach to foreseeing a class of harm (p. 593).
• Hindsight runs both ways (Hale LJ, p. 593).
• Warnings are suppressed through several channels: employer retaliation, stigma, hostile culture, peer sanctions, and the “intellectual bias” of established experts. Law reaches only some of these (pp. 582, 584–585).
• Whether compensation deters depends on whether the risk-creator pays in proportion to its own record (pp. 594, 599–600, 603). The chapter itself calls such feedback “modest”.
• Liability shields can buy continued supply of a valuable product, as with vaccines, at the cost of deterrence (pp. 596, 603; one case, not evaluated).

Transferable insights (technology-neutral)#

1. Burden and standard of proof decide who absorbs scientific uncertainty (pp. 586–593). Strong (structural).
2. Formally neutral evidentiary gatekeeping can disadvantage whoever carries the burden, especially if the evidence demanded is insensitive to the harm (p. 588). Moderate, contested by those who see such rules as screening out unreliable science.
3. First-recognised harms are often followed by different, graver ones, so responsibility can attach to classes of harm where the actor was on notice of the known harm (pp. 590–593). Strong for asbestos, moderate as a generalisation.
4. Hindsight distorts in both directions (p. 593). Strong as a methodological principle.
5. Recognition of warners lags vindication, so protection must act before the science settles (p. 584). Suggestive, because the cases are selected for vindication.
6. People whose own work is being challenged are conflicted judges of the challenge (p. 585). Moderate.
7. The design of reporting channels decides where knowledge of hazards flows (p. 583). Moderate.
8. Fast, table-based redress depends on a history of prior harm, which novel hazards lack (pp. 595, 599, 601). Strong as a dilemma.
9. Compensation deters only if the risk-creator pays in proportion to its own record (pp. 594, 603). Strong conceptually, moderate empirically.
10. Removing fault does not by itself end slow, contested litigation (p. 598). Suggestive: one example, and the chapter does not say causation was the cause.
11. Liability caps plus a burden of proof on the public encourage excessive risk-taking with shared assets (p. 602). Moderate.
12. Money secured in advance addresses firms that cannot pay later and rewards firms for researching their own risks, but may burden new entrants and depends on the state’s ability to monitor (pp. 600–601). Suggestive.
13. Social consensus that there are victims governs how fast redress comes (p. 597). Suggestive.
14. Litigation discovery forces producers’ internal knowledge into public view (p. 590). Moderate here, though strong in the historical record.
15. Rights-based claims that need no proof of harm (unconsented bodily or property invasion) could move accountability earlier, before harm is demonstrable (pp. 589–590). Suggestive: the author’s own untested proposal.

Main caveats#

• Advocacy with no counter-voice. The evidence is mostly secondary legal literature and Cranor’s own six works. There is no outcome data on whether the proposed schemes work, and the radiation scheme’s success claim comes from the scheme’s own website. A critical source the chapter does cite (Priest 2003, on the “problematic” structure of the 9/11 fund) is used only for definitions, while 9/11-fund features are recommended.
• Errors:
• The VICP figures give about USD 78 000 per claimant; USD 1.18 billion ÷ 1 500 is about USD 787 000. The “12 years” of operation is inconsistent with the 2010 citation.
• Panel 24.1 misspells Hosokawa, Pusztai and Chapela. The last two appear nowhere else in this volume and apparently in no volume 1 case study, and their work was scientifically contested [external: verify].
• Claims of discouraged “young scientists” and of nanotechnology coverage (p. 581) are unsupported in the body.
• Dated. The asbestos panel is essentially from 2004 (it omits Barker and the Compensation Act 2006 [external: verify]); the Deepwater Horizon text is from 2010; the whistleblower material rests on one 2001 source; the New Zealand account may be wrong on fault [external: verify].
• Near-absence of EU law. Uncited references suggest a cut section on the Environmental Liability Directive. The Product Liability Directive’s “development risks” defence, which runs directly against Margereson, is not mentioned.
• Law does not fit the harassment described. Whistleblower law protects employees from employers, but much of the harassment Gee lists (literature attacks, publication barriers, funding loss, legal threats) can come from peers, funders and litigants.
• A value choice framed as a technical fix. “Benefit of scientific doubt … given to victims” (p. 581), sub-50 % probabilistic awards and presumptive categories (pp. 595, 601) move the cost of error onto producers and levy-payers.
• Possible undisclosed interest [external: verify]. Cranor may have been a plaintiffs’ methodology expert in Milward, the case he praises (p. 588).