Goal Analysis versus Institutional Analysis of Toxic Compensation Systems

Abstract

How to compensate individuals for exposure to toxic substances has been hotly debated in legal circles recently. Most of the debate has been based on an assumption that is usually taken for granted: that reform must be accomplished by tinkering with the legal doctrines courts apply in toxic tort cases. The immediate purpose of this article is to question that assumption. Its thesis is that many of the problems that now afflict toxic compensation law cannot be solved as long as the issue is formulated in terms of modifying the legal doctrines applied by courts in toxic tort cases. Rather than debating about how to modify traditional tort law doctrines to accommodate toxic tort cases, we should be focusing on the problems of toxics in the environment from the standpoint of the legal system as a whole. From this perspective, the correct way to formulate the inquiry is in terms of two separate but related questions: (1) what role compensation through the legal system should play in an overall social strategy for dealing with toxic substances in the environment; and (2) which of a variety of institutions available to the legal system is best suited to dealing with toxic compensation problems.