Litigating Crisis.

[Phillip Paiement] April, 23, 2020

In the first entry to this CoronaJournal, Peer Zumbansen made note of the remarks made by a group of law students during a late-March online lecture. One of their reactions to covid-19, in the context of their legal education, included the consideration of ways to ‘sue China.’ When I read the entry in early April, I felt that the students’ remarks reflected uninformed and reactionary political commentary featured in cable news talkshows, yet I also thought they were very similar to how many students at my law school would respond as well.

Low and behold, on 21 April, the Missouri Attorney General filed a lawsuit against the Chinese government, the Chinese Communist Party, and a number of ministries and public institutions in China. The AG is accusing them of creating a public nuisance, conducting abnormally dangerous activities, and breaching duties in ‘allowing transmission of covid-19’ and ‘hoarding PPE.’ What I had written off as reactionary and uninformed had just become reality. And that was just the beginning. I am particularly drawn to the class action litigation brought forth by the Austrian Consumer Protection Association against the federal state of Tyrol in Austria, to which more than 2,500 tourists have joined after having caught the virus while on ski holiday in the first half of March.

Why do we turn to litigation when we find ourselves in a crisis? What does litigation offer in such moments? We know that litigation has been capable of dramatically transforming the governance of industries in crisis. The litigation surrounding tobacco and asbestos products in the 1980s and 1990s is often used as an example of the transformative regulatory effects that litigation can offer, breaking through decades of legislative deadlock. Likewise, litigation in the climate crisis has been successful for forcing governmental agencies to take regulatory action on issues previously deemed outside the purview of their powers (Mass v EPA), and even ordering governments to reduce emissions much more quickly than their climate policies had required (Urgenda v the State of the Netherlands). It has also been used in smaller-scale formats to ‘artificially’ drive up the costs of fossil fuel energy (as if we have had good grasp of its ‘natural’ costs) and create additional barriers for (re-)licensing dirty power plants. But the ‘global tobacco epidemic’ and the climate crisis are more illustrative of a slow violence, which differs from our current covid-19 pandemic and the immediacy between actions and consequences.

Perhaps the better comparison would be litigation that followed the 1984 Union Carbide gas leak in Bhopal, the 2005 Hurricane Katrina, and the 2010 Deepwater Horizon oil spill, all of which are characterized by moments of immediate danger. Following these events, litigation was used for both structural and emancipatory purposes. Structurally, it can offer a tool to disrupt current distributions of risk and responsibility. It also offers a rallying point, a symbol, and a venue for attention that gives victims of catastrophe a voice and forum to give form to their identities, which would otherwise remain abstract. 

After Katrina, for example, homeowners filed many lawsuits against insurance companies who had used ‘anti-concurrent causation’ clauses in their policies to prevent coverage of joint wind-flood damage, even if the policy would usually have covered flooding. One of the regulatory successes in this line of cases was to establish that such clauses did not apply when wind and flood cause damage ‘sequentially and separately,’ rather than concurrently (Dickinson v. Nationwide Mut. Fire Ins. Co.). The judgments have an esoteric feeling to them, as the courts evaluate whether wind and water each cause their own damage, or whether they work together. Does Gaia strike with one complex blow, or several sequential blows? Yet, this dissection by litigation had meaningful structural consequences. It shifted responsibility back onto insurers to cover this sequential property damage caused by increasingly common extreme weather events.

Above all else, I would argue that litigation seeks to establish a semblance of responsibility in moments of (and immediately following) crisis. This is particularly important when crises are perceived to be worsened by the avoidance of responsibility. Given the ways in which governments (local, national, and supranational), corporations, public institutions, and private individuals are diverging on what they perceive to be the responsible course of action, it seems inevitable that there will be many litigation attempts to follow the covid-19 pandemic. I imagine that there will be litigation over grievances that public authorities, companies and employers did both too little, too late, as well as too much, too long. And that is telling of the situation we are in.

I return now to the Tyrolean skiers. For me, their case is really illustrative of the demands that our consumer economies place on our social institutions. Our fortunate lives demand pushing institutions to their limits. We demand our annual ski holiday, but refuse to believe that it should come with a responsibility for the risk involved. Imagine if the ski resorts had closed, rendering accommodation bookings useless and voiding non-refundable lift tickets. We insist on the benefits of open borders (cheap consumer products, travel) but resit taking responsibility for their consequences both at home and abroad. We complain when restaurants are more expensive than their competitor down the street, and are then shocked to find that neither can cover employees’ wages amid the stay at home measures. Our refusal to take responsibility for our consumer economies pushes our social institutions and our private lives to the edges of precarity.

So there will be litigation of this crisis, and maybe some of it will feel ‘good,’ just. (Some of it most certainly won’t.) It might make some (substantial) impacts on structural distributions of risk in labor or insurance law. It might empower public institutions to be more proactive in future pandemics, or punish those who mocked public health experts and declared their willingness to sacrifice their constituents’ lives to please the gods of the market. But it will remain window dressing for our deeper problem. We have been asking too much, and refusing to accept the consequences of doing so.

In that vein, I’ve found Latour’s assignment very meaningful these past weeks: What are some suspended activities that you would like to see not coming back? His proposed exercises may be a more helpful format than litigation for ascribing responsibility. It might just reveal that we have more options to pursue meaningful, social lives, at a safe distance from the thresholds of disaster. It could guide us in taking responsibility to prepare for, or even avoid, the next crisis.

Phillip Paiement | Utrecht | (the Netherlands) April, 23, 2020

Published by pzumbansen

law professor.

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