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Tragedy in the Judicial Commons

May 7, 2002

You might be of the opinion that people who have been exposed to asbestos should have the right to sue asbestos manufacturers for damages. Or that individuals exposed to mercury or lead should be able to sue. Or that everyone who has been X-rayed by doctors or dentists, or anyone with a silicone breast implant, no matter how healthy and happy they are, or everyone who lives downwind from a hog farm or cigar smoker should be able to sue.

Sadly, you are correct. The sorrow, for thousands of truly injured victims or their families, has its genesis in the recent easing of the legal standard that plaintiffs must meet to legally sue in tort cases. Although many may perceive this change to be trifling and benign, in fact it reduces the likelihood that parties with demonstrable injury will be compensated.

Historically, judicial recognition of legal standing required a plaintiff to demonstrate: (1) that he or she was injured, (2) that the injury was caused by the defendant, and (3) that the court was in a position to effect a remedy. That is, a plaintiff was required to demonstrate actual injury, not merely perceived injury or possible future injury. However, on January 12, 2000, in the case of Friends of the Earth v. Laidlaw, the U.S. Supreme Court cast aside this sensible common-law requirement in favor of a standard that permits a plaintiff to claim possible injury. In the Laidlaw case, the Court regarded plaintiffs' concern that water was polluted and their belief that the pollution had reduced their property values as sufficient to indicate injury.

Now we are seeing the utterly predictable consequences of the new legal standard: a massive increase in tort actions brought by healthy individuals seeking "damage" awards. The wealth of a target firm is potentially available for distribution to many times more uninjured than injured parties. As the number of uninjured parties seeking judicially arranged wealth transfers for unproven damages increases, it becomes less likely that individuals with legitimate injuries will be able to secure the compensation they deserve. This is a tragedy of the judicial commons.

Garrett Hardin introduced us to the Tragedy of the Commons in 1968. Hardin developed a stylized example of a communal pasture that is open to all comers. There are no private property rights to the pasture, nor are there rules, customs, or norms for shared use. In this setting, shepherds seeking to maximize the value of their holdings keep adding sheep to their flocks, as long as doing so adds an increment of gain for their particular flock. Further, they graze their sheep on the commons as long as the pasture provides any sustenance. Ignorant of the effects of their individual actions on the other shepherds, the shepherds collectively (and innocently) destroy the pasture. As Hardin concludes:

Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit--in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in freedom of the commons.

Man's exploitation of the judicial commons is perfectly analogous to Hardin's exploitation of natural resource commons. There is a limited amount of life-enhancing greenery available. If it is not overgrazed, the greenery will grow and provide nourishment that can sustain indefinitely a stable population of consumers. Since consumption of the greenery by one individual comes at the expense of consumption by all others, each individual who is granted access has a strong private incentive to consume as much as possible before the green is consumed by others. Restricting access to those with demonstrable and justifiable claims helps prevent overgrazing. Consequently, increasing the number of citizens with access to the target green increases the likelihood that it will be wiped out by the extent of the depredation, leaving no one able to consume green from that source in the future.

As reported in a lengthy article in the Wall Street Journal (April 25, 2002), this is exactly what has happened with asbestos litigation:

In the past two years, desperately ill plaintiffs have been eclipsed by a huge and growing number of healthy people seeking awards for possible future illnesses. Since January 2000, the wave of less-severe claims has pushed at least 20 companies that sold or used asbestos products into bankruptcy protection. . . . The upshot: There are fewer unencumbered companies to pay claims. The sickest asbestos victims are now collecting far less than comparable victims did in the 1990s. And the whole asbestos mess, which was supposed to be largely resolved by now, instead is spreading and could drag on for decades.

The morass has increasingly pitted the interests of mortally ill plaintiffs against those who are much healthier. Dallas lawyer Peter Kraus, who files asbestos suits only for cancer victims, condemns rivals who represent those who aren't sick. "They're sucking the money away from the truly injured," he says.

The problem, of course, is that not everyone who has been exposed to asbestos, mercury, lead, tobacco smoke, or other putative environmental toxin de jure will be harmed. Yet, by granting parties who cannot demonstrate actual harm the legal standing to sue, we have opened the legal pasture to a veritable flood of new grazers who care only about the opportunity to feed on the delicious green, not about the harm they inflict on others whose claims may not only be more pressing but may also have real merit. The tragedy of the judicial commons, then, is that by granting legal standing to those with unproven harm, we destroy the most fundamental justification for tort actions: the social imperative for harmed parties to be compensated fully by those who are responsible for the injury.


David Laband, an adjunct scholar at the Mises Institute, is a professor of forest economics and policy at the Forest Policy Center in Auburn University's School of Forestry and Wildlife Sciences. See his Mises.org Archive and send him MAIL.


Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.

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