ABSTRACT
Many corporations have successfully postponed or reduced their legal responsibility for public harms by controlling the scientific research that informs liability. In the biomedical field in particular, academics have reconstructed a veritable playbook of strategies that corporations have used to manipulate the scientific record documenting the hazardousness of their activities. By controlling what is scientifically known about their products and activities, corporations can successfully stave off tort liability since that same information is a key ingredient to plaintiffs in alleging causation in their complaints. Indeed, in some cases it is more cost effective for a corporation to invest in tactics that control the information environment rather than discontinue a profitable but harmful activity.
In this contribution to the annual Clifford symposium, I argue that tort law must be adjusted to provide victims with tools that can be used to force large institutional actors to reveal the truth about the harms they are causing to victims. Adjusted liability rules must not only require corporations to disclose what they know, but to rigorously investigate what they deliberatively do not know (or may be intentionally distorting) about the widespread harms they may be causing. In proposing the reform, I embellish on Alexandra Lahav’s ‘knowledge remedy’ to suggest one way that tort law can be used to produce this critical causal information about chemicals and their potential harms and begin to counteract the current misalignment between liability rules and corporate responsibility.
Wagner, Wendy E, When a Corporation’s Deliberate Ignorance Causes Harm: Charting a New Role for Tort Law, DePaul Law Review, volume 72, no 2, 2022; University of Texas Law, Legal Studies Research Paper.
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