Bhopal Is for Lawyers
“”Get Union Carbide’ is the slogan,’ announced tort lawyer John P. Cole of Washington when he arrived in Bhopal. It happened that Mother Teresa arrived on the same plane with the American contingency-fee boys. The contrast between the diminutive nun and the swaggering tortsmen did not go unnoticed. “Forgive, forgive,’ said the winner of the 1979 Nobel Peace Prize. “I just ask everyone to forgive.’ That sort of attitude doesn’t cut much ice on the litigation circuit.
After visiting the maimed and bereaved, Mother Teresa expressed her grief at the suffering, but then added: “One beautiful thing. It has brought out the best in everybody.’ Well, perhaps not quite everybody. Take Mr. Cole, the lawyer. When asked whether some might not see him as an ambulance chaser, he replied, “I don’t care what they say. If I come in from the airport and two days later have seven thousand clients, that’s the greatest ambulance chase in history.’
But why blame the lawyers? They just came along for the ride. It is the judges and legislators who have turned liability law into an instrument of plunder instead of restitution. The prospective lynching of the Union Carbide Corporation is merely the logical culmination of a process that has been going on for years.
First the idea of negligence was replaced with the far more costly standard of “strict liability.’ Under this standard, Union Carbide loses even if the leak turns out to have resulted from employee malfeasance or separatist sabotage.
Then the judges decided that a company can be on the hook for the misdeeds of another company of which it owns a piece. Union Carbide owns only half of its Indian affiliate; the other half is held by Indian nationals. These other investors, of course, are not being sued by the contingency-fee crowd.
Union Carbide, incidentally, is under attack for letting its Indian managers go unsupervised. But although the authorities allowed Union Carbide to keep nominal 51 per cent control, American experts quoted in the Times say that “majority ownership did not imply control.’ In fact, the law of the land was specifically aimed at discouraging the sort of oversight that was needed. We have all heard the rhetoric about the evils of a branch-plant economy, about how hometown decisions are made by faraway executives. The Bhopal plant avoided all that. It was designed in India and staffed entirely by Indians, both of which procedures were legally obligatory unless Union Carbide could demonstrate to the satisfaction of Indian authorities that local resources were unavailable. Safety planning “was by law largely in the hands of the subsidiary’s Indian staff,’ the Times says (italics added). Domestic content has its price.
The crowning touch is the fact that our judges are now being invited to export the liability system they have created, by entertaining Bhopal suits in American courts even though Indian judicial (and legislative) remedies are available. This may involve our intrepid jurists in gathering depositions delivered in Hindi, interpreting Indian law, and so forth. No one is pretending that these suits derive from any sort of symmetrical view of international law. Suppose an Air-India jet crashed into your house tomorrow; would they tell you to go sue in Madhya Pradesh for Indian standards of compensation? And if not–if we are to hear their cases but they not hear ours–we will have achieved the ultimate in imperialism: applying the U.S. legal system to the rest of the world.