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Q&A with Prof. Eric Feldman on Fukushima One Year On, and Law and Disasters

May 14, 2012

Eric Feldman, a Professor of Law and Deputy Dean for International Affairs at Penn Law, focuses on Japanese law, comparative public health law, and law and society. His books and articles explore the comparative dimensions of rights, dispute resolution, and legal culture, often in the context of urgent policy issues including the regulation of smoking, HIV/AIDS, and other aspects of the health care system.

After Japan’s tsunami and Fukushima nuclear catastrophe last year, Feldman’s research and teaching have focused increasingly on law and disasters. He recently spoke with the Law School’s Office of Communications about this new aspect to his work.

Penn Law (PL):  Please tell us about your latest research project focusing on the aftermath of Fukushima.
Eric Feldman (EF): I’m one of several scholars who’ve come together for a research project that examines the role of law, lawyers, and legal professionals in the aftermath of disasters. The group is run by a law professor who leads the Japanese Association of Law and Sociology, and we have several experts - nuclear physicists, social psychologists, philosophers, but especially lawyers and law professors - examining what happened in Japan and how one should be thinking about addressing the issues that are left unresolved from Fukushima.

In addition, we’re also looking toward the future and trying to figure out proactively what one can be doing to prepare for other disasters that will inevitably occur.
PL: How did this come about?
EF:  With some funding from the Japan Foundation the first meeting was held last March in collaboration with the Sho Sato Center at [the University of California] Berkeley. Experts were grouped as to whether or not they were going to focus on natural disasters or nuclear disasters. We then, of course, had a conversation about how one ever distinguishes between those since what happened in Fukushima was both a natural as well as a nuclear disaster.
There were three or four of us who thought that the most significant issue that we could be addressing as law professors was the issue of compensation. One of the Japanese scholars presented an overview of where the Japanese government, and Tepco, the power company that owns the Fukushima nuclear plant, were at that moment with regard to funding and allocating money for compensation. My focus was looking at some of the arguably related - though not identical - compensation schemes that had been created in the U.S., and thinking about what, if anything, one can learn from them that would help us better figure out what to do about compensation in Japan.
PL: For example?

EF: I looked at the the Deepwater Horizon spill in the Gulf, at 9/11, and at the Virginia Tech shootings - and also went all the way back to Agent Orange [during the Vietnam War], focusing on some of the vexing questions that arose. Some of the most difficult issues involve proximate cause - what does one about the restaurant a thousand miles away from the Deepwater spill that is losing money because they can’t source their seafood from the Gulf, and so on. 
I came to understand there were tremendously interesting differences in the way in which compensation is structured in Japan, both procedurally and substantively. For example, one of our Penn Law adjunct faculty members, Ken Feinberg, has been almost singlehandedly responsible for structuring compensation systems in the U.S. with regard to 9/11, Deepwater Horizon, and others. But everything in Japan is being done by committee.
Eric FeldmanProf. Feldman at Meiji University in Tokyo presenting a talk at a meeting on “Law and Disasters: What Can We Learn from Complex Disasters?”
In addition, the budget for Fukushima compensation is unclear, and many people worry that it may be insufficient. But at least in a number of the compensation schemes in the U.S. the question hasn’t been, here’s the amount of money we have, how are we going to parcel it out? Rather, the question has been, what’s the fair and appropriate and justifiable principle through which people should be compensated? There was no budget, for example, for 9/11, and the $20 billion set aside for Deepwater Horizon does not appear to be the final amount.

But it became clear in Japan that the restrictions on the possibility of being compensated are really quite large. It is clear that a relatively small number of people look as if they are going to be compensated  - only those harms caused by the nuclear accident, not the earthquake or tsunami, are compensable - and the amounts that they’re going to be paid are relatively small.
At our next meeting in Tokyo we will continue the academic analysis, but also examine whether there are specific, consensus-based policy recommendations that may emerge.
PL: How has the Fukushima catastrophe affected your research and teaching?

EF: I’ve got to say, a year ago at this time I would have never guessed that law and disasters would be an area on which I’d be spending time. It’s not so far afield, I suppose, given that I teach tort law, which at least is in part focused on  law and disasters, but I’ve not really spent time looking at disasters of the magnitude of 9/11 or Fukushima. 
When the Fukushima disaster occurred, I was happily working on a project on dispute resolution in the district courts in Japan. But it quickly became obvious that I could not stand on the sidelines. It just didn’t feel emotionally or morally appropriate to do so. 
Fukushima is also directly affecting my teaching this semester, and I will discuss it in both of my classes: Public Health Law and Policy, and Law and Society in Japan.

For Public Health Law and Policy I had never thought to have a component that looked at the law of catastrophes. But I will spend some of the class this year doing so. Likewise in my Japanese Law and Society class, it seemed awfully difficult to teach the class without making reference to an event that’s caused many people to rethink, or reformulate, certain ideas about Japan. Perhaps in the future I will convert my Public Health Law and Policy class into a class on law and disasters or the law of catastrophes – or perhaps legal responses to catastrophes
PL:  On the one hand, with public health law and policy it would seem there are more opportunities for proactive prescriptions to address problems before they’ve occurred. However, with law and disasters, it would seem lawyers and legal scholars can primarily offer remedies or responses rather than anticipate problems. What can lawyers do proactively regarding disasters?
EF:  It’s a hard question. One piece of the answer is that you can really see the negative consequences of the uneven dispersion of lawyers in Japan. Like everywhere, attorneys congregate in large cities and rural areas struggle to get physicians and lawyers, for example, into underserved areas.
It turns out that access to legal services in the Fukushima area is just terrible. It’s not that the lawyers who are there are terrible; they are good, smart, and dedicated. There are just very few of them. But because many see themselves as having made a sacrifice to be there, they’re very territorial. It’s been very difficult for people who need legal aid or advice to get it. Tokyo lawyers are being kept out, and Fukushima lawyers are overwhelmed. 
One thing the legal profession may do is be a little more attentive to the need to insure that access to legal services is sufficient across the country.
In addition, it’s not clear that as a question of regulatory structure anyone had thought much about evacuation in Japan. That is, how you evacuate, where you evacuate, to what degree people are forced or required to evacuate. For instance, when it comes to compensation, what is the difference between those who are given no choice to relocate, as opposed to those who are strongly recommended, but not mandated, to relocate?

It turns out that compensation is going to be rooted almost entirely on those distinctions; those who were forced to move are going to get paid. But those who were told that perhaps they should, but they didn’t have to move, either won’t get paid, or won’t get much. 
I don’t think much thought has been given to those distinctions, and so more attention to regulatory structures and schemes about that set of issues is incredibly important.

The question of causation is also interesting. More and more in recent months one sees articles suggesting that the Fukushima meltdown was the result of human error and bad planning.  You don’t need to know a lot of Japanese history to know that periodically, for the last 1500 to 2000 years, there have been massive tsunami in the Fukushima area. You don’t need to know much about world history to know there have been nine-plus earthquakes with some regularity over the last 50 years. 
Many in Japan are now suggesting that the nuclear regulatory agencies were either asleep at the wheel or simply bought off by their constituency to under-regulate. And so what initially what was being played as an unpredictable, never-to-be-anticipated set of events that led to terrible human suffering, has increasingly started to be painted as a set of human blunders that greatly amplified what would have been tragic, but not nearly as tragic.