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Perchlorates, Pikas, and Plastics: What This Economy Could Do If Only…

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Yesterday’s Presidents Day Special with Richard Norton Smith allowed me to lawyer all day rather than just in the morning. My practice requires that I stay up-to-date on some pretty strange things such as perchlorate clean-up, the land-use implications of a pika listing as an endangered species, and the tidal wave of plaintiffs’ litigation against certain plastics manufacturers.

All of these areas of current controversy require armies of lawyers battling over pretty obscure stuff –who pays to get the perchlorate out of the ground, who will pay to mitigate for the impacts of global warming on the pika, and should plastics manufacturers get tagged with the alleged costs of the alleged illnesses or disabilities their products have produced? Huge dollars are involved in each area, so the litigation surrounding each of them goes on and on. All of those costs and all of those settlements or jury awards get passed right back to the consumers of goods and services.

These are just three of the hundreds of relatively new controversies that have entered into our court system in the past decade. Many new controversies are ahead –and they will all be litigated because that’s just how our system has evolved. We divide up and reallocate the profits of productivity via the courts, and reassign the negative externalities of growth via trials.

The massive costs associated with this approach cannot be quantified, but as the economy struggles to return to real growth, the litigation burden is the unseen hundred-pound pack on every CEO’s back. What this economy could do if the tort system and environmental laws were rationalized is amazing to contemplate given what it can do even while carrying those extraordinary costs.


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