Tuesday, March 2, 2021
Bob Rabin has posted to SSRN Some Thoughts on Compensation and Remedial Relief for Disasters in the American Legal System. The abstract provides:
We live in a time when disasters, tragically, have taken on new meaning. Natural disasters arise with greater frequency and growing intensity. And responsible party disasters—disasters that are man-made—dominate the headlines, generating fear and a sense of disbelief. Both preventive measures beforehand, and restorative efforts on behalf of victims thereafter, raise enormously difficult questions of how to best address these momentous events.
This essay focuses on the restorative efforts: compensation and remedial relief for disasters in the United States legal system. The essay sets out to briefly describe the multi-layered system in the U.S. for addressing the consequences of catastrophic loss, which is framed in a typology based on a straightforward, two-fold approach.
Part I discusses compensation for natural disasters, where a combination of legislative no-fault compensation systems, privately held insurance, and governmental assistance programs compensate property loss, which is the dominant, although by no means exclusive, source of harm. Part II turns to responsible party disasters—where tort serves as the default system for seeking redress for physical harms. In addition to tort, Part III considers other options for securing compensation, such as targeted informal settlement schemes. Finally, the essay concludes with a brief note on the shortcomings of each of these strategies and suggest the need for a hybrid approach that draws upon each of the positive elements in our patchwork system.