The Truth about Torts: An Insurance Crisis, Not a Lawsuit Crisis

Thomas O. McGarity holds the Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law at the University of Texas in Austin. He is a member of the board of directors of the Center for Progressive Reform, and a past president of the organization.

Professor McGarity has taught and written in the areas of Administrative Law, Environmental Law, Occupational Safety and Health Law, Food Safety Law, Science and the Law, and Torts for twenty-five years.

While in academia, McGarity has served as a consultant and/or advisor to the Administrative Conference of the United States, the Office of Technology Assessment of the U.S. Congress (OTA), the U.S. Environmental Protection Agency, the U.S. Occupational Safety and Health Administration (OSHA), the Texas Department of Agriculture, and the Texas Natural Resource Conservation Commission. With Professor Sidney A. Shapiro, Professor McGarity designed and helped initiate a rulemaking prioritization process for OSHA rulemaking during the early 1990s. As a consultant to OTA, Professor McGarity helped write the "Regulatory Tools" report that agencies have frequently cited in designing regulatory programs. As a consultant to the Texas Department of Agriculture, McGarity was a primary draftsperson of that agency's first farmworker protection regulations in the late 1980s. During the mid-1990s, he was also actively involved in the drafting of and negotiations surrounding the federal Food Quality Protection Act.

Professor McGarity began his legal career in the Office of General Counsel of the Environmental Protection Agency. In the private sector, Professor McGarity has served as counsel or consultant in various legal and administrative proceedings to the Natural Resources Defense Council, Public Citizen, the Sierra Club, the American Lung Association, the National Audubon Society, Texas Rural Legal Aid, California Rural Legal Aid, and many local organizations, including, for example, The Bear Creek Citizens for the Best Environment Ever. McGarity has also served on many advisory committees for such entities as the U.S. Environmental Protection Agency, the Office of Technology Assessment, and the National Academy of Sciences.

Professor McGarity has published widely in the areas of regulatory law and policy. His book Reinventing Rationality analyzes the advantages and disadvantages of cost-benefit analysis in regulatory decision-making and describes the use of such regulatory impact assessments by federal agencies and the Office of Management and Budget during the Reagan Administration. Workers at Risk, co-authored with Sidney A. Shapiro, describes rulemaking, implementation and enforcement in the Occupational Safety and Health Administration from its inception in 1970 through 1990. The book then analyzes OSHA's strengths and weaknesses and makes many recommendations for improving standard-setting and enforcement. McGarity's casebook, The Law of Environmental Protection, co-authored with John Bonine, has been used in introductory Environmental Law courses at law schools throughout the country. His relatively recent books include The Preemption War: When Federal Bureaucracies Trump Local Juries, Yale University Press 2008, and Bending Science: How Special Interest Corrupt Public Health Research, Harvard University Press 2008, co-authored with fellow CPR Member Scholar Wendy Wagner.

Professor McGarity has published dozens of articles on environmental law, administrative law, and toxic torts in prominent law reviews, such as the Harvard Law Review, Chicago Law Review, Pennsylvania Law Review and Law & Contemporary Problems, as well as in specialty journals, such as the Administrative Law Review, the Harvard Environmental Law Review, Risk, and the Kansas Journal of Law & Public Policy, and consumer magazines like the American Prospect and the Hastings Center Report. McGarity has written on federal regulation of biotechnology since the advent of the commercialization of recombinant DNA techniques, and his article in the Duke Law Journal on the "ossification" of the federal rulemaking process, which elaborates on the dangers of encumbering the process of promulgating health and environmental rules with burdensome analytical requirements and review procedures, is frequently cited in the recurrent "regulatory reform" debates.

Professor McGarity has been an active participant in efforts to improve health, safety and environmental quality in the United States. He has testified before many congressional committees on environmental, administrative law, preemption of state tort laws in cases involving medical devices, and occupational safety and health issues. During the first session of the 104th Congress (the "Gingrich" Congress), Professor McGarity was frequently the lone representative of the view that federal regulation had an important role to play in protecting public health and the environment on panels testifying before House and Senate Committee considering "regulatory reform" legislation. Professor McGarity has also participated in path-breaking legal challenges to government inaction like Environmental Defense Fund v. Blum (a challenge to EPA's decision to allow further use of the carcinogenic pesticide mirex through emergency use exemptions) and Les v. Reilly (a challenge to EPA's failure to establish protective tolerances for eight carcinogenic pesticides). As a result of the latter litigation, the pesticide industry was forced to accept the greater protections afforded children in the Food Quality Protection Act of 1996. 

Thomas McGarity
The University of Texas School of Law
Austin, TX
512.232.1384
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Douglas A. Kysar is Deputy Dean and Joseph M. Field ’55 Professor of Law at Yale University Law School.

Professor Kysar's scholarship covers two primary subject areas, product liability and environmental law, and is characterized by a strong interdisciplinary approach that fuses conventional legal economic analysis with insights from a range of other relevant disciplines including cognitive and social psychology, ecology, and philosophy.

Prior to joining the Yale Law School faculty, Professor Kysar taught at Cornell Law School.  He served as a judicial clerk for the Honorable William G. Young of the United States District Court for the District of Massachusetts. From 2000 to 2001, he practiced corporate law with Foley Hoag LLP. Since joining academia, Professor Kysar has consulted on litigation matters involving toxic torts and professional responsibility. He has been a visiting faculty member at Harvard, Yale, New York University, and UCLA Law Schools, a visiting scholar at the Universitat Pompeu Fabra in Barcelona, Spain and at the London School of Economics, and a Distinguished Environmental Law Lecturer at the Florida State University College of Law.

Professor Kysar has published works in the Harvard Law Review, the Columbia Law Review, the New York University Law Review, the Northwestern University Law Review, the Cornell Law Review, the Minnesota Law Review, Ecology Law Quarterly, and the Boston College Law Review. These articles cover a range of topics relevant to the regulation of environmental, health, and safety risks, including consumer risk perception, corporate advertising and marketing practices, economic modeling of the environment, and the uses and abuses of scientific information in environmental policy debates. In addition to these works, Professor Kysar has published several chapters in edited volumes, including one analyzing the implications of cognitive and social psychology for the understanding and regulation of tobacco products and one exploring the possibilities and limitations of neoclassical economics as a model for legal analysis. His book, Regulating from Nowhere: Environmental Law and the Search for Objectivity, examines certain underappreciated moral and political assumptions that underlay invocation of cost-benefit analysis and the precautionary principle within intergenerational policymaking cotexts.  He is a co-author of textbooks in environmental law, tort law, and products liability law.

Professor Kysar graduated magna cum laude in 1998 from Harvard Law School, where he received the Sears Prize and was a member of the Board of Student Advisors. 

Douglas Kysar
Yale Law School
New Haven, CT
203.436.8970
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Karen Sokol is Associate Professor of Law at the Loyola University College of Law in New Orleans. 

Karen Sokol joined the Loyola University New Orleans College of Law faculty in 2009. Her teaching and research interests include environmental law, torts, products liability, and law and philosophy. Her current scholarship focuses on legal controls on marketing of dangerous products, climate change resilience, particularly for vulnerable countries such as Cuba and India, and, most recently, on the potential for forging more robust environmental and public health protections by incorporating Indian philosophy into Western jurisprudence, law, and policy. She will spend the spring of 2018 researching in India, supported by a Fulbright Award.

Professor Sokol graduated from Yale Law School, where she served as Articles Editor for the Yale Human Rights and Development Law Journal and was a member of the Allard K. Lowenstein International Human Rights Clinic. After law school, she clerked for Judge Carolyn Dineen King of the United States Court of Appeals for the Fifth Circuit and worked as an associate in the appellate section of Vinson & Elkins, LLP. She then worked as a policy analyst for the Center for Progressive Reform, writing a number of papers and articles on environmental and public health issues, with a focus on government transparency and corporate accountability. The year before coming to Loyola, she was a fellow at Georgetown University Law Center’s O’Neill Institute for National and Global Health Law. She is admitted to practice in the state of Texas and the U.S. Court of Appeals for the Fifth Circuit. 

Karen Sokol
Loyola University New Orleans College of Law
New Orleans, Louisiana
504.861.5593
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