Chapter 4 Relationship Between Toxic Tort and Public Law (Woburn Case)

Chapter 4 Relationship Between Toxic Tort and Public Law (Woburn Case)

Comparative Advantage of Private Law (civil action)

· pursuit of remedies not held back by politics or inertia

-wide range of theories/complaints to pursue

-can be mobilized without technical procedures

-no legal obligation of official agencies to investigate and remedy threats

· greater diligence (motivation) in pursuing outcome

-produces compensation ($) for injured parties

· courts have great variety of equitable remedies to tailor outcomes

Comparative Advantage of Public Law

· emergency protective actions can be ordered quickly

· land remediation techniques can be ordered and funded by the responsible corporations

· proof is easier—not required to prove causation by preponderance of evidence

-burden of proof is on the party charged, not prosecuting agency

-agencies’ expertise and authority obtain judicial deference, i.e, presumption of validity of agency action

-courts can only overturn if decision is "arbitrary and capricious"

· effects can be applied at a wide scale (not just a single case)

"For the time being, the legal situation is likely to continue with common law as an active and tangible element in most toxic exposure cases, with supplementary overlays from the public law system. Or is it vice versa?" (p. 297)