Saturday, April 23, 2011
Mass torts encompass a broad array of harms, including, as many of you may recall, The Buffalo Creek Disaster, as publicized by Gerald Stern's book of the same title. Following up on coal mine safety, Anne Marie Lofaso (West Virginia) has an interesting piece titled What We Owe Our Coal Miners, which is forthcoming in the Harvard Law Review. Here's the SSRN abstract:
In 2007, I published Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective, which raised, but did not answer, the following question: What do citizens of a “just” society owe workers, such as coal miners, who daily risk their lives for our collective comfort? I endeavor to answer that question in What We Owe Our Coal Miners.
I begin with three observations. First, borrowing from philosopher Thomas Scanlon, I observe that justice requires us to justify dangerous jobs by presenting reasons that “no one could reasonably reject as a basis for informed, unforced, general agreement.” In this context, I note that underground miners put themselves in physical danger and health risk to generate energy for all members of our society. Accordingly, those who benefit from the fruits of their labor owe reasons to those miners. Second, I acknowledge my own bias to live in a society that directly values the dignity of human life. Third, I note that the free-market argument does not directly value life, but values efficiency instead, which leads inevitably to markets clearing at a Kaldor-Hicks efficient level of fatalities as an acceptable risk rather than policies promoting the safest possible workplace.
Accepting that, in reality, the political will does not exist to stop underground mining, the question becomes – what do we owe our coal miners? My conclusion, of course, is safer working conditions, but not after considerable deconstruction of free-market justifications. I begin by relating the human cost of meeting global energy demand through the profitable coal mining industry. Using economic data and historical circumstances, I then show the enormous power disparity between the well-compensated coal mine operators and coal miners, who actually risk their lives and health to mine the coal that generates about half of U.S. electricity. I draw the conclusion that the coal industry is particularly well-suited for collective bargaining because it is precisely the type of industry – large disparities in labor-management bargaining power with the potential for enormous disruptions in interstate commerce – that Congress had in mind when passing the National Labor Relations Act.
In searching for a solution that presents sufficient reasons to justify coal mining, I test the hypothesis whether coal mining laws have in fact resulted in safer mines. Using a broken stick statistical method, I show that coal mine laws have in fact resulted in safer mines. Observing further that union mines have resulted in fewer disasters than nonunion mines in the past several decades, I argue for imposing the union model on top of this regulatory floor of rights. This solution has the added benefit of empowering those individuals who are actually risking their lives for our collective comfort. I end with the hope that this model for dignifying human life can be used for analyzing other dangerous jobs in crucial industries.