Why Courts? Comment on Robinson

Abstract

Glen Robinson's suggestion that courts should award damages to persons exposed to toxic substances before any disease occurs and without proof of causation of injury in the traditional sense is not merely an idle theoretical proposal; it is the direction in which the law of "toxic torts" is now moving. To be sure, as yet few courts have been willing openly to jettison traditional causation requirements. Rather, the change is being accomplished indirectly under the guise of damages for "cancerphobia," reimbursement for the costs of future "medical monitoring," judicially stimulated settlements, a and reimbursement for loss of property values. Together these trends add up to courts and juries straining to nullify the unrealistic hurdle that allowed victims of toxic substances poisoning to recover only by proving that it is more likely than not that particular physical injuries were caused by exposure to a particular toxic substance.