Gulf Oil Disaster — Lessons in Torts and Bailouts

The oil rig explosion that killed eleven workers and causes the daily flow of an estimated 200,000 gallons of oil into the Gulf of Mexico presents a gut check moment on tort policy.  A lot of harm has been and will be caused by this catastrophe, and somebody will bear the cost of that harm. Should it be the responsible parties? the victims? the taxpayers?

American tort law, under the principles of proximate cause and nuisance, tells some victims that they must bear the cost of their own harm because it is either too remote (not a “proximate” cause) or too common (to be compensable, damages from a public nuisance must be “different in kind” from those suffered by others) to require the responsible party to pay. The responsibility of those whose conduct caused the harm must have a “sensible and just” stopping point, according to established doctrine. As a general matter, under common law principles, it is “sensible and just” to cause victims to bear their own costs if the harm they suffer is essentially economic or emotional in nature, as opposed to bodily injury or property damage.

These uncompensated losses often hit the taxpayers as well as the victim. 

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May Day Tea Parties

Most recently, the political left accused conservatives of dumbing down the President’s health care bill. It did not usher in “socialized medicine” and did not call for “death panels.” The conservatives weren’t completely wrong. The bill – both by its provisions and by anticipated responses to what are the almost certain ways in which it will fail to achieve its intended purposes – dramatically increases and centralizes public control of health care markets including decisions on what treatments are and are not “cost effective.”

But the folks on the left also had a point. Although one cannot expect mass political movements to be marked by the dispassionate and, we hope, carefully reasoned discourse to be heard in the court room or lecture hall, supporters of the health care bill argued (with some justification) that the over the top rhetoric obscured rather than clarified. Tea parties, they said and still say, are exercises in political hysteria and ignorance in which honest differences of opinion are turned into existential conflict and ordinary political opponents are portrayed as extraordinarily evil. Mass opposition to disfavored legislation and politicians is fine as long as it is accurate and temperate. This is what they say.

Except when they don’t.

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Arizona’s Big Mistake

Arizona recently passed into law provisions that make a person’s illegal presence in the state of Arizona — currently a civil violation under federal law — a crime under state law.  The Arizona law also provides for the arrest of persons where the police have a “reasonable suspicion” that the individual is unlawfully present and where the individual cannot produce the proper documentation.  Last minute changes  were made to the law this past Friday in order to prohibit the use of racial or ethnic profiling by police in determining who to stop and question, and to clarify that questions about an individual’s immigration status should only be asked as part of an investigation of non-immigration related violations.  These changes to the original language were made to try and stave off several threatened lawsuits intended to challenge the constitutionality of the Arizona law.  

These changes to the law may diminish the likelihood that the Arizona state statute will be found to violate the Fourth Amendment and the Equal Protection Clause.  However, the most likely ground for a ruling that the Arizona law violates the Constitution was, and remains, that any state attempt to regulate the border is preempted by the pervasive scheme of federal immigration legislation.  While many observers will anxiously await the outcome of these constitutional challenges, it is important to recognize that there is a separate and more fundamental reason why the Arizona law is a mistake.  The law perpetuates a trend by our elected officials, identified by Professor Jennifer Chacon and others, that mistakenly conflates the criminal law with immigration law.  The convergence between these two separate areas of the law began in the 1990s and gathered momentum after September 11, 2001.  This process needs to be stopped and reversed.

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