Archive for Vol. 2, No. 2 (Spring 2012)

Consumer Liability for Harms Linked to Purchases

By Nathan Ostrander – While the problem of negative externalities has long been recognized by environmental law, legal responses have uniformly focused on producer behavior. There is growing recognition, however, that consumption also contributes significantly to climate change and other forms of environmental degradation in ways that are not fully reflected in the prices of products. A major reason is that the harms from consumption develop many years after the consumer makes a purchase. But in the future, a virtually cashless society reliant on electronic payments will record the purchases of consumers. Technological developments will set the stage for the viability of consumers as class action defendants who could be held liable for societal harms that subsequently develop as a result of their purchases. Today, consumer class action plaintiffs discover they are entitled to portions of class action verdicts; in the future, consumer class action defendants will learn they must pay plaintiffs, including state governments suing on the basis of public nuisance, for the damages resulting from their purchases. Consumers, of course, would have to be put on notice, perhaps through a labeling system, that they are assuming liability for future harms. By taking advantage of technological developments that enable a cashless society, it will become possible to sue consumers who purchase goods that contribute to environmental degradation and other social harms.

The Caribbean Catastrophe Risk Insurance Facility: Parametric Insurance Payouts Without Proper Parameters

By Lauren Brooks – In this day and age, it is hard to credibly deny the reality of climate change. After all, experts overwhelmingly agree that “[w]arming of the climate system is unequivocal [, as evidenced by] increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level.”[1] They have noted discouraging trends in instances of extreme weather, including “more intense and longer droughts,” heightened “frequency of heavy precipitation events . . . over most land areas,” and “an increase in intense tropical cyclone activity in the North Atlantic.”[2] They predict, with a high degree of confidence, that these trends will only amplify in the future.[3] Quite bleakly, they inform that even were it possible for humankind to cease current practices that exacerbate climate change, its past activities “will continue to contribute to warming and sea level rise for more than a millennium, due to the time scales required for removal of [carbon dioxide] from the atmosphere.”[4]