Frank B. Cross, Environmentally Induced Cancer and the Law (Quorum, 1989). 229 pp. Figures, graphs, tables, bibliography and index. ISBN 0-89930-389-7; LC 88-38295. [$45.00. 88 Post Road, Westport CT 06881.]
Chemical Contamination and Its Victims (D. W. Schare & M. Katzman, eds., Quorum, 1989). 180 pp. Figures, tables and index. ISBN 0-89930-428-1; LC 88-37436. [$45.00. Address above.]
The Role of Science in Toxic Tort Litigation: Evaluating Causation and Risk (Tort & Insurance Practice Section, American Bar Association, 1989). 176 pp. Tables. Paperback. ISBN 0-89707-502-1; LC 89-46282. [Members $34.95, nonmembers $39.95. 750 N. Shore Dr., Chicago IL 60611.]
Cross' treatment is well integrated and comprehensive. After a technical overview (two chapters), he tries to show that many public fears are overblown and that the most serious risks are posed by things which individuals control (e.g., tobacco). Yet, he also tries to demonstrate that zero-tolerance levels for carcinogens, e.g., the Delaney clause, are supportable insofar as it has been impossible to find minimum thresholds.
Having laid a technical foundation, Cross then discusses the federal regulation of carcinogens (in 4 chapters) and common law liability for environmental carcinogens (in 3 chapters). Regarding the latter, he suggests that easier recovery in private actions would be an effective supplement to regulation. This is offset by recognizing the need for control of punitive damages -- lest early victims leave nothing for later recovery.
Chemical Contamination and Its Victims covers much the same territory and is well balanced. The introduction and selection of well-written essays reflect open-minded concern about "a maze and a labyrinth of issues and institutions." Thus, one essay bewails victims' difficulty in getting compensation, whereas another cites instances in which unwarranted damages may be received.
Yet the conclusion is unsatisfying. It argues for "uncoupling compensation and deterrence regimes for chemical agents" with little indication of the means. Moreover, two premises seem to underlie some of the ideas: (1) that the threat of tort liability deters desirable chemical innovation more than, e.g. premarket regulatory approval, and (2) that regulatory action is an effective deterrent to socially unacceptable conduct. Neither is adequately explored.
Nevertheless, this well-produced volume merits close examination.
The Role of Science in Toxic Tort Litigation will appeal to a small audience -- which partially accounts for its expense. It contains mostly photocopies of typewritten papers presented at a 1988 meeting of the ABA Tort and Insurance Practice Section. Contents range from an annotated outline to a reprint of a Science article -- the latter, not appearing in the table of contents.
Some practicing attorneys will find the book's cost insignificant given the stakes. However, non-lawyers will find it less useful, and, even law libraries will probably want treatises which show more editorial control and have been better produced.
T.G.F.
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Stephen D. Sugarman, Doing away with Personal Injury Law (Quorum, 1989). Foreword, Jeffrey O'Connell. 224 pp. Bibliography and index. ISBN 0-89930-395-1; LC 88-38311 [$49.95 88 Post Road, Westport CT 06881.]
Criticism is easy, but designing superior alternatives is not. Professor Sugarman goes further than many in both regards. Yet as Judge Bownes of the First Circuit recently observed, the jury system is the worst way of resolving complex disputes except for all others. [See, Hugh Bownes, Should Trial by Jury be Eliminated in Complex Cases? 1 Risk 75, 80 (1990).]
In the first part of his book, Sugarman addresses the failure of tort law to meet various goals, including safety, compensation, and justice. He begins by attempting to answer defenders of the tort system, who, recognizing that it is not a very efficient mechanism for compensating victims, often emphasize its value in promoting socially desirable behavior. In doing so, he discusses the extent to which tort liability (often covered by insurance policies) deters unsafe behavior and observes, at 13, that insurance may interfere with the deterrent effect of torts because:
In practice... only a very small proportion of insureds pay premiums that are importantly sensitive to changes in the dangerousness of their conduct.Auto insurance premiums appear to more directly reflect individual claims experience, but, even in that situation, Sugarman says, at 15:
... I remain unable to see how the fear of $100-200 more in insurance premiums will yield safer driving habits where moral qualms, self-preservation interests, and the fear of fines or losing a license have not.He thus concludes, at 23, that common microeconomic models advancing tort liability as a deterrent to unsafe behavior fail to account for many important factors. He also suggests that:
[S]ociety might try trading five lawyers for a highway engineer and a dangerous-product public information officer. We would not only save money, but we might get considerably better accident protection to boot.The second part of the book addresses existing plans and proposals for curtailing victims' rights and supplanting tort liability with no-fault insurance. Here, for example, the comprehensive no-fault scheme in New Zealand and the experience with workers' compensation (a classic no-fault insurance scheme) in the United States are discussed.
In the last part of his book, Sugarman goes on to advance and explain a combination of tort liability, employee insurance, and regulation that he would expect to efficiently compensate victims and deter unsafe behavior. As a first step, he would eliminate approximately 90 percent of tort cases, with only long-term injuries being covered. However, assuming arguendo, that insurance is superior to torts in compensating victims and inferior in preventing injury, where do we look for deterrence? For example, had decades of workers' compensation experience been shown to deter unsafe practices in the workplace, we would never have needed the Occupational Safety and Health Act of 1970. [See supra, e.g., Graham and Holtgrave, 1 Risk 243.]
As was done there, Professor Sugarman suggests that regulation can fill in the gaps left by shrinking tort liability. A decade ago, I would have agreed. [See, e.g., The Young Consumer: A Paradigm Analysis of the Roles of Public and Private Law in Preventing and Redressing Injuries, 29 Mercer L. Rev. 523 (1978).] Intervening years of teaching administrative process, consumer product regulation and product liability have convinced me that present regulatory shortcomings are as serious as those in the tort system and that it would be unwise to undertake radical tort reform without having first addressed the regulatory shortcomings. [See, e.g., Raymond v. Reigel Textile Corp., 484 F.2d 1025, 1027 (1st Cir. 1973).]
Notwithstanding skepticism about its ultimate conclusion, I highly recommend this book. Either Sugarman's criticism of microeconomic tort models, for example, or his honest attempt to evaluate insurance as deterrent would, alone, warrant careful consideration.
T. G. F.
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Chet Fleming, If We Can Keep a Severed Head Alive... (Polinym Press, 1988). 461 pp. Appendices; index. ISBN 0-942287-02-9; LC 87-90566. [$12.95. 33 Berry Oaks, St. Louis MO 63122.]
The book explains why he spent a good amount of time and money to obtain a patent for an invention that he had no intention to practice. It may be the only one ever to be filed by an inventor using a pseudonym and is entitled "Device for Perfusing an Animal Head." The patent is reprinted in its entirety as Appendix D and, indeed, claims, e.g.:
1. A device for maintaining metabolic activity in a mammalian head which has been severed from its body at its neck, comprising the following components...Patents sometime generate controversy, e.g., the "live, human-made micro-organism" declared by the Supreme Court to constitute patentable subject matter in Diamond v. Charkrabarty, 447 U.S. 303 (1980). However, as noted above, this one was filed for the sole purpose of encouraging early public attention to an incipient technology --or incipient technologies generally.
4. A method... wherein the component which can remove waste products from the blood is selected from the group consisting of....
Notwithstanding his narrow point of departure, Fleming deals broadly with the social control of science and technology and explores ways in which society can keep some measure of control without losing the benefits of modern science and technology -- particularly those of medicine.
If We Can Keep a Severed Head Alive... was written for a broad audience and is likely to be of interest to most readers of Risk.
T. G. F.
Sequel: Excerpts from the patent are also online.
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Codes of Professional Responsibility (Rena A. Gorlin, ed., BNA Books 1990). Foreword by Frances B. Thomas, M.S.W. 555 pp. Resource lists. Three indices: issues; professions; organizations. LC 89-48019; ISBN 0-87179-641-4. [$48.00, P.O.B. 7816, Edison NJ 08818-7816.]
Each code is preceded by a brief description of the relevant association, including its address and phone number, and information relating to implementation and enforcement. Also, the book concludes with three helpful resource lists including: first, research centers, educational programs and governmental bodies dealing with ethical issues; second, journals and periodical services; and, third, bibliographies, databases and libraries with special ethics collections. The resource sections and indices should be of great use to anyone doing research on ethics.
Historically, members of our society who call themselves "professionals" have had a major impact. One of the things which distinguish such organizations is a code of ethics. Codes of professional responsibility define the substantive standards for admission and subsequent discipline. This volume provides interested parties an opportunity to evaluate whether a organization's claim to self-regulation or other special status is warranted. More importantly, it provides a context through which persons from different disciplines can better understand each other. This type of understanding facilitates the interdisciplinary decision making necessary to address some of our most pressing societal problems.
A compilation of various codes of ethics and resource lists does not provide overly interesting reading. However, CODES OF PROFESSIONAL RESPONSIBILITY is a book which many individuals and libraries will find of value. I have used the book extensively during the brief period I have owned it.
Mitchell M. Simon, Franklin Pierce Law Center
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Mark A. Rothstein, Medical Screening and the Employee Health Cost Crisis (BNA Books 1989). Foreword Edward L. Baker, MD, MPH. 296 pp. Notes, figures, tables, glossary of legal terms, glossary of medical and health care terms, table of cases and index. LC 89-977; ISBN 0-87179-628-7. [$45.00, address above.]
Robert Decresce, Mark Lifshitz, Adrianne Mazura & Joseph Tilson, Drug Testing In The Workplace (ASCP Press and BNA Books 1989). Forewords by Edward Miller, JD and George Lundberg, MD. 278 pp. Notes, figures, tables, table of cases and index. LC 88-39191; ISBN 0-89189-260-5 (ASCP), 0-87179-588-4 (BNA). [$45.00 BNA Books.]
Rothstein's book is a sequel to his Medical Screening of Workers (1984) and explores the shifting focus of workplace medical screening in recent years. He notes that medical screening efforts are more-and-more being directed at the identification of nonoccupational illnesses, in contrast to earlier screening which focused on attempting to identify those at increased risk of developing occupational illnesses or incurring occupational injuries.
After discussing the increasing importance of medical screening, Rothstein devotes separate chapters to diagnostic and predictive screening -- and to specific types of testing (genetic, AIDS, and drug testing). He examines the legal implications of screening (three chapters), discusses health insurance and explores policy issues.
Drug Testing in the Workplace, with its more narrow focus, provides a more detailed examination of one type of employee screening. It includes a short, easy-to-read treatment of some of the probabilistic issues surrounding drug test accuracy which are all-too-often ignored.
Separate chapters are devoted to legal issues, testing processes, the employer's decision to test, and the concern of unions. The book also contains the National Institute on Drug Abuse guidelines, and a chapter which discusses the drugs of abuse and the benefits and limitations of drug detection methods.
John M. Gleason, Creighton University