As examples of change, Benson points out that the duty owed by a manufacturer has been expanded for decades and the standard of liability has moved away from the idea of fault or negligence. Under strict liability, no showing of fault is required. The expansion of punitive damages, for which there is no clear standard, also constitutes a changing of the rules. With toxic torts the potential for unreasonable punitive damages is immense. Another change is the courts' willing-ness to allow damage awards from firms that might have had responsibility for the harm, although direct evidence is lacking.
Some courts now accept statistical probability of harm in lieu of causal evidence in toxic cases.
The vagueness of the rules weakens property rights and puts valuable assets up for grabs. People are willing to spend money to obtain those assets through litigation. More wealth is dissipated as the owners of the assets try to protect them. Because of this diversion of wealth, society is poorer than it would have been under a regime of reasonable and stable tort rules.