Rachel Maines on the evolution of asbestos guilt

In the past forty years some 8,000 businesses and other entities have been named as defendants in American asbestos litigation. The story has often been told (among other places, in my book The Rule of Lawyers) of how this litigation spread in widening concentric rings to ever more peripheral defendants. The first major targets were companies that had been deeply involved with mining, processing and distributing asbestos; after these companies went bankrupt, the second ring included manufacturers of construction materials, heating and electrical products, and other goods that had included asbestos for the insulation or flameproofing properties for which it was long almost ubiquitous. By the time many of those companies were at length pulled into insolvency, the litigation had spread further to a much wider circle of defendants that had not themselves done any manufacturing involving asbestos, but had used such materials in factories, offices, schools, power plants, and so forth.

I’ve also discussed (in this 2007 Reason piece) some of the ways in which government itself promoted the injurious use of asbestos in industrial settings, above all wartime shipbuilding. But I didn’t get into another dimension of the issue, which Rachel Maines (visiting scientist at the Cornell School of Electrical and Computer Engineering) develops in a compelling article on “The Asbestos Litigation Master Narrative: Building Codes, Engineering Standards, and ‘Retroactive Inculpation.'” [via TortsProf, 2012, and very belatedly being linked here]. Maines:

As Cardozo Law School professor Lester Brickman correctly observes, most asbestos claims “were the result of defendant’s retroactive inculpation for acts committed decades earlier that were not wrongful at the time.” I concur with Brickman in this but go beyond him in arguing here that the vast majority of current asbestos claims result, in fact, from past efforts to enable compliance by property owners and building contractors with building codes and engineering standards at the Federal, state, and local levels that specified and approved asbestos in code-compliant assemblies. In many cases, the use of asbestos was required by law; no asbestos-free assemblies were approved in, for example, cathodic wrap for underground steel gas pipe, hot-air register insulating paper, and electrical insulation for conductors in switchboards. There is still no equivalent-performance substitute for asbestos in high-temperature gaskets and some types of high-performance motor vehicle brakes….

In effect, the tort law system that has supported asbestos litigation since 1973 drove much older and well-established building law, and the engineering standards incorporated into it, into a legal shadow from which it has yet to emerge, penalizing the makers and owners of products manufactured in compliance with construction regulations as negligent and characterizing all products that contained asbestos as “defective” and “unreasonably dangerous.” Historians will recognize this as an economically consequential case of the fallacy of presentism: the imposition of modern values on the past. In 1987, Federal judge Christine Cook Nettesheim accurately characterized the initial 1973 asbestos case, Borel v. Fibreboard, as “an icon of hindsight analysis.”

Read the whole thing, which has much other interesting material about the triumph of the “master narrative” of asbestos litigation promoted by plaintiff’s lawyers and their allies.


  • As the asbestos litigation unfolded over the years, I often thought back to the time when I was with the NLRB as a trial attorney in Newark, NJ. It was over 50 years ago, probably in 1964 or 1965, and the underlying issue of the case was a company trying to use preformed fittings in pipe insulation, a new product on the market at the time. The defendant union was a local of the International Association of Heat & Frost Insulators and ASBESTOS Workers, AFL-CIO (Since purged of Asbestos and now known as “Insulators”) The new forms were made of asbestos, and were to be used on corners and other types of shapes found in HVAC installations. The union was striking to demand that construction employers be barred from using this new product, and continue the old practice of hand forming these shapes on the job by hand saws and other tools used to make L and Y shapes. Since the process the union sought to retain involved much more exposure to its members than use of prefabricated shapes, the thought occurred to me whether or not the unions had any liability or responsibility for its demand to retain a procedure that further endangered its members to the dangers of asbestos.
    I knew the answer, and realized that my ruminations were of the type to be confined to a course in ethics, but I couldn’t help but wonder if the labor leaders involved ever felt a twinge of conscience about how their demands affected the members they represented?
    The bottom line is that not only did building codes require asbestos, there was a powerful union that existed to represent the workers in that field that actually lobbied and struck to spread its use in construction.

    • To the extent that they thought about it, I’m sure they rationalized it as “that’s the material the bosses told us to use so it’s their fault, really”.

  • The concept of “guilt narrative” is fascinating, given all the similar situations where progressives have sought to engineer social change. Tobacco is the first one to come to mind, with nuclear energy a close second, and automobiles (the concept and the execution both being totally evil) taking third place. But now we have them trying to create a climate change narrative to de-industrialize the planet and re-distribute wealth. It is fundamentally a demonization of fire.

    Quite an ambitious undertaking, but since it has worked before, and they know how to do it, and the media is in place to support them, why not shoot for the moon? It will be interesting to watch what happens in Paris.