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BP Causes Tort Reformers To Rethink Consequences

Have you noticed that the tort reformers have been conspicuously silent during this - the worst tort disaster in American history? Hum, I guess like Rosanne Roseannadanna( played by SNL's late and great comedian Gilda Radner) would have said, "never mind". The president  has insisted and BP has agreed to put up $20 billion to be handled by a third party administrator who will decide how to compensate the injured people and wildlands of Gulf Coast. Since the leak continues to spew tens of thousands of gallons of oil a day it is impossible to assess whether $20 billion is even close to paying for their damages.   Here's another thought: Does this mean more "big government" intervention? I bet the tea party conservatives are having a hard time with this one. Will corporate America, or in this case the United Kingdom, do the right thing on their own, and is this another chance for us to consider whether tort  reform advocates should eat their words or head down to Gulf with sponges and mops to help with the clean-up? In a recent article from the Wall Street Journal, Emeritus Professor of Law at the University of Chicago Richard Epstein suggested that a liability cap should not be imposed on BP. Professor Epstein is not a liberal mouth piece for anyone as those who have followed his career know. He asks the question of what mix of sanctions do we need to prevent and cure events like Deep Water Horizon (even the name conjures up a sci-fi movie trailer). He says:  "The first element in the mix is a no-nonsense liability system that fastens full responsibility on the parties who run dangerous operations, no excuses allowed. Accordingly, we have to be especially wary of statutory caps ..."  He also points out that:  "A tough liability system does more than provide compensation for serious harms after the fact. It also sorts the wheat from the chaff--so that in this case companies with weak safety profiles don't get within a mike of an oil derrick". He believes that insurance underwriting will do a better job in pricing risk then the government. The professor makes sense; we don't need government to regulate - but a strong tort system to hold business accountable. If there is one thing we have learned in the last couple of years,  it's that big, and I am talking big, big business,  has one primary focus - profit. I am not saying this is a bad thing, it can be  a good thing, but  corporations have no social consciousness, so they don't understand their own power to screw things up at so many different levels. Just look at the public face of BP over this crisis. Is it just me or do their spokespeople just not get it? I certainly don't get true contrition from their remarks and that's because what they represent is not flesh and blood but balance sheets and accounting reports.  The next time you hear or read that tort reform is necessary consider the source and consider where the poor people in the Gulf might be without it. One final quote from Professor Epstein: Tort remedies are essential to protect people (and their property) who do not have contractual relations with defendants from harms such as air and water pollution. The legal system should never allow self-interested parties to keep for themselves all the gains from dangerous activities that unilaterally impose losses on others--which is why the most devout defender of laissez-faire must insist, not just concede, that tough medicine is needed in these cases. ... Dennis F Feeley

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