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Blaming Victims

Published online by Cambridge University Press:  20 November 2018

Richard L. Abel
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American Bar Foundation Research Journal , Volume 10 , Issue 2 , Spring 1985 , pp. 401 - 417
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Copyright © American Bar Foundation, 1985 

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References

1 K. Marx & F. Engels, Manifesto of the Communist Party 31 (1965) (“A spectre is haunting Europe-the spectre of Communism”).Google Scholar

2 The insistence of Douglas and Wildavsky on minimizing risk may simply reflect the relative good fortune enjoyed by upper middle-class professionals. Social psychological studies have shown that estimates of danger are strongly affected by the experience of victimization. E.g., Scheppele & Bart, Through Women's Eyes: Defining Danger in the Wake of Sexual Assault, 39 J. Soc. Issues, no. 2,1983, at 63. As the study of misfortune by the Oxford Centre for Socio-Legal Studies shows, the experience of victimization is unequally distributed by class, gender, age, and other variables. See Abel,. £'s of Cure, Ounces of Prevention, 73 Calif. L. Rev. 1003 (1985) (reviewing D. Harris, M. Maclean, H. Genn, S. Lloyd-Bostock, P. Fenn, P. Corfield, & Y. Brittan, Compensation and Support for Illness and Injury (1984)).Google Scholar

3 The rhetoric of Douglas and Wildavsky resembles that developed by industry in its attack on regulation. In an unseemly parody of Roosevelt's famous speech, the voices of industry contend that the problem is not risk but fear, not cancer but cancerphobia; the most important risks are voluntarily assumed by victims through their choices of lifestyles—consumer goods, leisure activities, and jobs. See the exchange between Whelan, Chemicals and Cancerphobia, 18 Soc'y 5, Mar./Apr. 1981, at 5, and Castleman, Preventing Catastrophe, id. at 9; Ozonoff, Public Relations Cancer, id. at 10; Harris, Nicholas, & Milvy, Reducing Environmental Risks, id. at 15; Crawford, Cancer and Corporations, id. at 20.Google Scholar

Adeline Levine convincingly demonstrates that an emphasis on victim choice was the strategy of both government and the Hooker Chemical Company in response to the Love Canal disaster. Her summary deserves extensive quotation.Google Scholar

At present, there seems to be a semiofficial contemporary legend emerging about Love Canal, composed of the following elements:

1. There are no proven physicial health effects at Love Canal.

2. There is only psychological damage to the people.

3. The psychological damage was created by a. fumbling bureaucrats, b. overzealous scientists, c. the mass media, d. corporate enemies, e. screaming housewives, f. rabid environmentalists, g. any or all of the above.

… The reason both for the contest and for the emerging explanations is very clear. The stakes are huge….

Local, state, and federal expenditures already run into the tens if not hundreds of millions; Hooker has been sued for several billion dollars. A. Levine, Love Canal: Science, Politics, and People 168–69 (1982). A $20 million settlement recently was concluded between the 1,300 homeowners and the chemical companies and government agencies. N.Y. Times, Jan. 1, 1985, at 9.Google Scholar

4 See, e.g., the persecution of a scientist who assisted the residents of Love Canal. Levine, supra note 3, at ch. 6; see also infra note 30.Google Scholar

5 Outrageous though it may seem, this statement is nothing more than the axiomatic foundation of liberal economics. It would condone the notorious Tuskegee experiments, in which black sharecroppers were deliberately infected with syphilis and allowed to die without treatment. J. Jones, Bad Blood (1981). Presumably it also would approve of the following. In the late 1960s, Dow Chemical Company conducted tests of dioxin (which contaminated Agent Orange, the defoliant it was selling to the federal government for use in Vietnam) on some 70, mostly black, male prisoners at Holmesburg Prison in Philadelphia. The prisoners were “rewarded” with small payments. The initial test exposed the men to up to 16 micrograms. But because of the largely “negative” results, a second test was conducted that increased the exposure to 7,500 micrograms. “Eight of 10 subjects showed acne lesions usually beginning in three to four weeks. In three instances, the lesions progressed to inflammatory pustules and papules. These lesions lasted for four to seven months, since no effort was made to speed healing by active treatment.” Because no records have been kept, it is not possible to identify the subjects today or to warn them about possible long-term effects of dioxin, which include cancer and birth deformities. Dioxin is one of the most highly toxic chemicals known; an oral dose of one-half to one microgram is always fatal to laboratory animals. Robbins, Dioxin Tests Conducted on 70 Philadelphia Inmates, Now Unknown, in 60′S, N.Y. Times, July 17, 1983, at 10.Google Scholar

The authors presumably would see nothing wrong with insisting that women of childbearing age who work with mutagenic or teratogenic chemicals accept sterilization or lose their jobs. For a contrary view, see M. Gibson, Workers' Rights ch. 1 (1983); see also W. Chavkin, ed., Double Exposure: Women's Health Hazards on the Job and at Home (1984); Howard, Hazardous Substances in the Workplace: Implications for the Employment Rights of Women, 129 U. Pa. L. Rev. 798 (1981).Google Scholar

Let me offer another example of a situation in which Douglas and Wildavsky, indeed most liberals, would view the victim as having chosen risk and therefore as disqualified from complaining. During the Love Canal struggle, residents learned for the first time that dioxin had been found at levels of 5.3 ppb in soil samples and 176 ppb in a holding tank. Pregnant women had been moved out of the area a year earlier, when the dangers were thought to be far less serious. After the dioxin levels were known, a woman who wanted to have a child asked to be moved before she became pregnant. The Commissioner of Health responded: “Since the availability of the information issued on February 8th, those women wishing to become pregnant are now in a position to make a choice with full information concerning the risks associated with their pregnancy prior to their pregnancy.” He refused to provide support for the move. Levine, supra note 3, at 42, 108. But of course, these women had no choice: All their savings were invested in homes on which they had to continue making mortgage and tax payments. They had not chosen to invest in a toxic waste dump. Should they be required to “choose” not to have children?Google Scholar

6 Joseph Gusfield gives a much more nuanced, qualified, and self-conscious illustration of this approach in The Culture of Public Problems: Drinking-Driving and the Symbolic Order (1981). He does not deny that drunk drivers cause automobile accidents but rather questions whether all or most of the blame ought to lie with the drinkers. For dissenting views that would focus on driver behavior, see H. Ross, Deterring the Drinking Driver: Legal Policy and Social Control (1982); The Law and the Automobile, 6 Law & Pol'y, no. 1 (Jan. 1984).Google Scholar

7 It is extraordinary to maintain that there has been no increase in risk as a result of economic activity, technological change, and the concentration of political power. During the last week of November 1984, when I was finishing this essay, the full scope of the famines in Ethiopia and Mozambique was publicized once again—hundreds of thousands will die and millions will suffer—and an explosion of LNG in Mexico City inflicted the most deaths, injuries, and property damage ever suffered in such an occurrence. More than 452 people died, and more than 4,000 were injured; 88 homes were destroyed, 1,300 damaged, and 31,000 people rendered homeless. In Taiwan, the third coal mine disaster in less than six months killed a cumulative total of at least 179 people. N.Y. Times, Dec. 5, 1984, at 5.Google Scholar

And then all this was dwarfed by the tragedy at Bhopal, India, in which more than 2,000 people died and more than 50,000 were affected by the release of methyl isocyanate gas at a Union Carbide plant on December 3, 1984. The maximum exposure standard for chemical plant workers is .02 ppm within an eight-hour day, more stringent even than for phosgene, the poison gas of World War I. (A phosgene leak three years ago had killed a worker at the same plant.) Reports earlier in 1984 revealed a number of problems at the plant, including the safety of storage tanks for methyl isocyanate. A number of commentators have noted that safety standards are lower in Third World subsidiaries of American multinationals. Indeed, the British Oxford Committee on Famine Relief estimates that 22,500 people die each year in Third World countries as a result of exposure to pesticides. Half the 750 workers at a Union Carbide battery plant in Jakarta had kidney damage as a result of exposure to mercury. Workers at a Johns-Manville plant 200 miles west of Bhopal routinely were covered with asbestos dust as late as 1981. See Diamond, The Pain of Progress Racks the Third World, N.Y. Times, Dec. 9,1984, g 4, at 1; N.Y. Times, Dec. 4,1984, at 1,4; id., Dec. 5, 1984, at 1; Dec. 6, 1984, at 1, 6, 8; Dec. 9, 1984, at 1, 12; Dec. 12, 1984, at 1.Google Scholar

Human intervention may explain not only environmental pollution but also many “natural” disasters that kill vast numbers of people every year: droughts, famines, floods, even the consequences of storms and earthquakes. Natural Disasters: Acts of God or Acts of Man? (1984), by Anders Wijkman, secretary general of the Swedish Red Cross, and Lloyd Timberlake, editorial director of Earthscan, concluded that poor land use, rapid population growth, and migrations were largely responsible for the fact that the average number of worldwide disasters had increased from 54 in the 1960s to 81 in the 1970s and killed six times as many people annually in the latter decade—disparities that could not be explained by changes in climate, geological events, or better reporting. Shabecoff, Natural Disasters: Study Says Man, Not Nature, Is to Blame, N.Y. Times, Nov. 18, 1984, at 8.Google Scholar

There is evidence that the amount of regulatory activity, as measured by budgetary support for agencies, does in fact vary directly with the number of incidents the regulation is intended to prevent. Kemp, Accidents, Scandals, and Political Support for Regulatory Agencies, 46 J. Pol. 401 (1984). On the increase in both risk and regulation in the chemical industry, see Symposium: Federal Regulation of the Chemical Industry, Law & Contemp. Probs., summer 1983, at 1. There is strong reason to believe that we continue to underestimate the risk. Earlier this year William Ruckelshaus, head of the Environmental Protection Agency, stated that there were a maximum of 1,800 toxic waste dumps that had to be cleaned up, and this would cost a maximum of $16 billion. Now the EPA has released a report stating that 2,500 dumps may have to be cleaned at a cost to the public of $22.7 billion. In fact, there are 19,000 known dumps and perhaps as many as 25,000. The revised estimate was based on the assumption that 40% of the cost would be recovered from the dumpers. But the so-called “superfund” bill (which attempts to do this) expires in 1985, and it has raised only $1.6 billion. N.Y. Times, Dec. 13, 1984, at 12.Google Scholar

8 For more along the same line, see E. Efron, The Apocalyptics: Cancer and the Big Lie: How Environmental Politics Controls What We Know (1984). However, a report by the Council on Economic Priorities, concluding a five-year study, found a 265% increase in cancer deaths between 1950 and 1975 in 59 rural counties with large concentrations of chemical and petroleum industries and a 148% increase in 71 industrialized urban counties. L.A. Times, Oct. 15, 1984, pt. 1, at 2.Google Scholar

9 In sharp contrast, Charles Perrow takes seriously lay judgments about risk and finds significant advantages in what he calls social or cultural rationality when compared with economic rationality or even bounded rationality. C. Perrow, Normal Accidents: Living with High-Risk Technologies 323–28 (1984).Google Scholar

10 These slurs do a gross injustice to the victims of pollution who struggle bravely against great odds to gain autonomy in the face of risk. See Levine, supra note 3; R. Wild, Heathcote: A Study of Local Government and Resident Action in a Small Australian Town (1983) (successful opposition to the siting of a toxic waste dump); J. Cook & C. Kaufman, Portrait of a Poison: The 2,4,5-T Story (1982) (British campaign against herbicide contaminated with dioxin); R. Rogers, Lead Poison (1982) (British campaign against lead, especially in petrol); R. Wedeen, Poison in the Pot: The Legacy of Lead (1984); P. Smith, The Politics of Physical Resources (1975) (five British environmental campaigns); Upham, Litigation and Moral Consciousness in Japan: An Interpretative Analysis of Four Japanese Pollution Suits, 10 Law & Soc'y Rev. 579 (1976); cf. Insight Team of the Sunday Times, Suffer the Children: The Story of Thalidomide (1979).Google Scholar

11 The actual groups involved in the campaigns described in the preceding note were anything but sectarian; they could not have been and still have waged effective, often successful, struggles against risk.Google Scholar

12 See, e.g., the following quotation:Google Scholar

[P]eople who were opposed to the use of pesticides were either misinformed or mentally unbalanced. They were … driven by obscure sexual urges, “first described by Freud,” and were usually cranks. The anti-pesticide leader… can almost always be identified by the numerous variant views he holds about regular foods, chlorination and fluoridation of water, vaccination, public health programs, food additives, medicine, science, and the business community.” The leaders in this movement used the controversy to sell “natural foods at unnatural prices, [and] to give color to their books, writings, and statements to gain notoriety….” They were antisocial and opposed to progress.

This is not Douglas and Wildavsky (though it sounds very much like them) but Louis A. McLean, the principal lawyer for the Industry Task Force for DDT of the National Agricultural Chemicals Association, who represented the task force in hearings before the Wisconsin Department of Natural Resources. Dunlap, T., DDT: Scientists, Citizens, and Public Policy 161 (1981).Google Scholar

13 I wonder how Douglas and Wildavsky would reconcile these stereotypes with the concern recently displayed by the North Carolina Council of Churches about the manufacture and sale of cigarettes. Even the Christian Life Commission of the Baptist State Convention—not usually thought of as a radical organization—agreed with the investigation of one of their own state's biggest cash crops, adding: “Christians must be responsible for the human situation where we are”. Perhaps the authors would concur with the response by the spokesperson for the Tobacco Growers Information Committee: “We disagree that there is a moral dilemma concerning tobacco. As an adult custom, use of tobacco is a matter of personal choice for an individual's life style.” N.Y. Times, Dec. 4, 1983, at 19. Or, to take another “environmentalist” group that does not fit their stereotype, what about the lawsuit Wed by the United States against Shell Oil seeking nearly $1.9 billion for environmental damage at the Army's Rocky Mountain Arsenal near Denver? Ostrow, U.S. Sues Shell Oil for $1.9 Billion, L.A. Times, Dec. 9, 1983, pt. 1, at 1.Google Scholar

14 This is an extraordinary accusation: Between environmentalists and polluters, can there be any question about who values the world more highly?Google Scholar

15 There is ample evidence that the conspiracies feared by environmentalists and workers are real, not imaginary. See infra notes 28 and 29 and accompanying text.Google Scholar

16 This is nothing more than a rerun of the conservative attack on sixties radicals, who first were criticized for being excessively negative and then, after having formulated a program, were accused of being doctrinaire and dogmatic. For another replay, see the attacks on the critical legal studies movement, e.g., Johnson, , Do You Sincerely Want to Be Radical 36 Stan. L. Rev. 247, 248 (1984) (a movement composed of supposedly radical law professors who proudly proclaim themselves to be ‘utopian,’ and whose positive program seems to contain nothing more substantial than an instinctive dislike for ‘domination’ and ‘hierarchy’); Schwartz, With Gun and Camera Through Darkest CLS-Land, 36 Stan. L. Rev. 413, 426 (1984) (“CLS aspires to an impossible Eden”); Carrington, Of Law and the River, 34 J. Legal Educ. 222 (1984) (nihilism).Google Scholar

17 A nice bit of mystification: The Sierra Club does not own property and seeks to make privately owned property accessible to all and to protect it from damage; industry and utilities own vast properties from which they exclude the public, which they despoil, and from which they inflict damage on the property of others.Google Scholar

18 Economists always can construct a selfish “explanation” for unselfish behavior by attributing desires to those whose actions appear altruistic, such as the preference of public interest lawyers for publicity. Komesar & Weisbrod, The Public Interest Law Firm: A Behavioral Analysis, in B. Weisbrod, J. Handler, & N., Public Interest Law: An Economic and Institutional Analysis 80 (1978).Google Scholar

19 This is a strange criticism in a book that displays no concern for anything except the denigration of environmentalists.Google Scholar

20 This cleverly smears environmentalists with the taint of unionism, a taint that derives from both capitalist fears and worker disillusion with undemocratic, bureaucratic, and sometimes corrupt organizations.Google Scholar

21 Wildavsky cites himself for this proposition but offers no evidence.Google Scholar

22 I do not know what “principle” guides Douglas and Wildavsky, but if they looked at actual campaigns against pollution they would find very impressive examples of selfless activity, e.g., L. Gibbs, Love Canal: My Story (1982); see also supra note 10.Google Scholar

23 This contradicts the earlier accusation that environmentalists simply seek to protect their own property. See supra note 17.Google Scholar

24 On the “safety” of nuclear power, see Perrow, supra note 9, at chs. 1, 2.Google Scholar

25 Elsewhere I have argued that the fascination with informal justice expresses nostalgia for vanishing authority. Abel, The Contradictions of Informal Justice, in R. Abel, ed., 1 The Politics of Informal Justice: The American Experience 267 (1982).Google Scholar

26 Yeats, The Second Coming, in The Faber Book of Modern Verse 58, ed. M. Roberts (3d ed. 1965). Indeed, Douglas and Wildavsky, perhaps unconsciously, almost paraphrase those famous lines: “When the center cannot be counted upon, and the ordinary activities of government cannot be taken for granted, all hell breaks loose” (at 182). I wonder whether there is something about Berkeley that attracts conservatives, or creates them. In an earlier review essay I noted the uncritical admiration for state authority in what ostensibly was a reflection on social change in Africa by Elizabeth Colson (a Berkeley anthropologist). Abel, The Problems of Values in the Analysis of Political Order: Myths of Tribal Society and Liberal Democracy, 16 African L. Stud. 132 (1978) (reviewing E. Colson, Tradition and Contract: The Problem of Order).Google Scholar

27 The doctrine of informed consent does not require physicians to disclose to the patient in advance all possible side effects or other clinical risks. Nor is “failure to do so… now deemed negligence.” It is absurd to state that the American doctor is accountable “not merely for his own technical negligence, but for the patient's actual physical condition”. And equally ridiculous to claim that “a jury may now judge for itself the desirability of a particular medical treatment in a particular case” (at 34). For a discussion of the difficulty of prevailing in a medical malpractice case and for other empirical data on the number and size of verdicts, see M. Peterson & G. Priest, The Civil Jury: Trends in Trials and Verdicts, Cook County, Illinois, 1960–1979 (1981); P. Danzon, The Frequency and Severity of Medical Malpractice Claims (1982); P. Danzon & L. Lillard, The Resolution of Medical Malpractice Claims: Research Results and Policy Implications (1982).Google Scholar

28 A Boston University study asked 214 physicians if they would testify on behalf of a patient who had suffered the removal of the wrong kidney at the hands of a negligent surgeon: Only 31 % of specialists and 27% of general practitioners were willing to do so. These results are quoted in M. Franklin, Injuries and Remedies: Cases and Matends on Tort Law and Alternatives 76–77 (1977).Google Scholar

29 If any side has grounds for paranoia, surely it is the environmentalists. Dr. Beverly Paigen was a research scientist at Roswell Park Memorial Institute, a state-supported cancer research center in Buffalo, She became deeply involved in the Love Canal tragedy, conducting tests on soil samples, counseling the residents, offering guidance and help in epidemiological studies, testifying, and ultimately making public her views on the urgency of the situation. The institute director then ordered her to inform him in advance whenever she intended to address a public meeting or make a speech outside her work hours. She was directed to report all contacts with the press. When she submitted a grant proposal (unrelated to Love Canal) to her boss for routine sign off, the latter already had been contacted by the New York State Commissioner of Health and indicated his disapproval before reading the proposal. She was prohibited from working on a subcontract for a large EPA grant. Mail addressed to her at work was opened before she received it. Finally, she was audited by the New York State Tax Commissioner for the first time in 20 years. When she appeared for her audit, she found that her file was bulging with clippings concerning Love Canal. Levine, supra note 3, at 115–33.Google Scholar

30 “The unintended results of a full flowering of sectarian politics would be larger, weaker government and a smaller economy” (at 183).Google Scholar

30a. 3I. They misrepresent the extent of federal government support for public interest law by including the funds devoted to Legal Services Corporation backup centers, which are required by law to devote their efforts solely to the poor. They ignore the fact that private foundation funding for public interest law has decreased dramatically in recent years. And they grossly overstate the ease of obtaining a court award of attorney's fees or intervening in federal regulatory proceedings. See generally Council for Public Interest Law, Balancing the Scales of Justice (1976); Handler, J., Hollingsworth, E., & Erlanger, H., Lawyers and the Pursuit of Legal Rights (1978); Weisbrod et al., eds., supra note 18. Republicans recently introduced bills in both houses of Congress to limit the ability of public interest attorneys to recover their fees from defendants when they prevail, 70 A.B.A. J. 46, Sept. 1984, at 46.Google Scholar

32 This conveniently ignores the fact that blacks were in America before Americans became obsessed with individualism.Google Scholar

33 The authors' “evidence” for this proposition is Robinson Crusoe. Google Scholar

34 Between 1942 and 1952 the Hooker Electrochemical Company dumped more than 21,000 tons of toxic waste in the Love Canal. In 1953, when the site was full, Hooker sold it to the school board of Niagara Falls for the token payment of one dollar. This act of apparent generosity was executed by a deed that included the following disclaimer: “the grantee herein has been advised by the grantor that the premises above described have been filled … with waste products resulting from the manufacturing of chemicals… and the grantee assumes all risk and liability incident to the use thereof… no claim, suit, action, or demand … shall ever be made… against [Hooker].” Levine, supra note 3, at 9–11. At the end of the three-year Love Canal struggle, the Urban Development Corporation, which had bought more than 500 homes and was negotiating the purchase of others, sought to resell those homes to new buyers. However, because chemicals still were leaching from the Love Canal site, the agency decided “in the face of the uncertainty, to ask future home buyers in the area to sign a disclaimer of liability, so that the city could avoid further lawsuits”. Id. at 216.Google Scholar

It also is hard to reconcile this desire “to take responsibilty for long-term risks” with recent declarations of bankruptcy by those who inflicted the risks, e.g., Johns-Manville with respect to asbetos and William L. Kovacs, head of the Chem-Dyne Corporation of Ohio, for the disposal of toxic waste. With respect to the latter, see Ohio v. Kovacs, 105 S. Ct. 705 (1985). Most recently, A. H. Robins & Co. has filed for protection from creditors under Chapter 11 of the U.S. Bankruptcy Code in order to avoid payments to the thousands of women who were injured while using the Dalkon Shield, which it manufactured. Shiver, Dalkon Shield Company Files for Bankruptcy, L.A. Times, Aug. 22, 1985, pt. 1, at 1.Google Scholar