Print
Article

Liability for Disaster Risks

Daniel A. Farber
Sho Sato Professor of Law and Faculty Director of the Center for Law, Energy, and the Environment at the University of California, Berkeley.

A growing body of law addresses liability for harms caused by disasters. The bases for liability are diverse: common law torts, statutes covering specific risks, and takings doctrine. Litigation can involve government or private defendants, while the disaster could be anything from an oil spill to a flood. This Article maps this complex legal terrain and discusses three cross-cutting themes in disaster liability. One theme is the action/inaction distinction, which can create a perverse incentive to postpone or forego mitigation efforts. The second theme involves the interplay between legislatures and courts in designing and implementing liability rules. The final theme is the tendency to constitutionalize disaster torts, a trend this Article criticizes. This Article proposes several reforms in light of these themes, including limitations on liability for risk mitigation measures like prescribed burns, rejection of strict liability, and reconsideration of judicial decisions that constitutionalize liability rules.

TABLE OF CONTENTS