public safety laws (only)

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From: Matt Jensen (
Date: Fri Dec 22 2000 - 11:08:17 PST

On Thu, 21 Dec 2000 wrote:

> ... anything what will make you stop. P l e a s e.

Agreed. I find Jeff's dismissal of all public safety laws much more
interesting than his position on g**s, which is why I retitled this
subthread. It's now re-retitled, with no "g**s" still in it, and I'd
prefer it be only about public safety laws, but not about g**s.

The question on the table is:

"Should certain kinds of behavior, which pose risks to members of the
public, be prevented by regulations, or solely by the deterrent effect of
lawsuits and/or criminal charges filed after-the-fact if the public is
actually harmed?"


On Wed, 20 Dec 2000, Jeff Bone wrote:
> Matt Jensen wrote:
> > If you don't have any laws protecting public safety, everything hasto be
> > argued in tort cases after the damage is done.
> And this is bad because... why? Make the punishment stiff enough and you'll
> incent self-regulation. Responsibility up front, penalties in the rear (yuk
> yuk) --- not paternalistic law.


Tort law is not criminal law. If you prove a chicken plant gave you a
chicken with salmonella, you can get money but you can't send the owners
to jail.

So what I interpret you to mean here is not really tort law, but that *if*
there were a law against selling a salmonella-ridden chicken, but no a
priori government inspections, you could take your evidence to the
district attorney and they could file charges against the owners. Is that
what you mean?

If so, I have some problems with that approach:

1. Burden of proof. It would be hard enough to win a *civil* suit against
a Tyson or a Perdue. ("Can you prove *this* chicken caused your
salmonella with a preponderance of the evidence? Can you prove the
supermarket or distributor didn't cause it?") But in prosecuting the
criminal case, you'd need to prove they willfully or negligently
(depending on the details of the salmonella-sale law) shipped a salmonella
chicken, and prove it "beyond a reasonable doubt." (And in the absence of
a specific law against selling chicken with salmonella, the poultry
factory could also challenge the theory that chicken meat breeds
salmonella in general. Just an extra thing you have to prove beyond a
reasonable doubt.)

2. Corporate immunity. Even if you win the criminal case, the owners will
not be put into jail if it is a legal corporation. Perhaps the laws about
this should be changed, but that's how it currently is. Of course,
corporate owners or officers also currently do not go to jail for
corporate violations of regulations[1], so I'm not claiming regulations
are superior here. But you seem to feel one could get some satisfaction
from seeing the perpetrators in jail, as a partial offset to the pain
caused to your family. I'm saying I think that satisfaction is unlikely
to come, as nobody will go to jail.

Now, if you are in fact talking about civil suits under tort law, you
probably face worse problems there. At least in the criminal trial, you
have the county/state/federal prosecutor's resources. In a civil trial,
you're likely to go it alone, with your legal fees coming out of your life

If I understand your "no public safety laws" position, it should be legal
to dump toxic waste, *unless* it turns out that you can prove somebody was
tortially harmed by it. While it's not too hard to prove that a given
chemical is statistically likely to harm a population (either of lab rats
or of people), it is extremely hard to prove that this can of the chemical
over here was the specific, direct, and primary cause of cancer in this
person living half a mile away. Legally, it's very hard to win that case.
And if the defendent is a large corporation, it's even harder. How many
people got wiped out trying to sue tobacco companies? (I'm not saying
smoking should be banned, I'm just making an analogy to the difference
between statistical proof in populations and legal proof in individual

You'll be lucky to get a small settlement. And that settlement, with a
non-disclosure provision, will not produce any incentive for similar
companies to act better. And even if you reject a settlement and win big,
the next tobacco company/poultry factory/water sanitation plant may still
prefer to do things its own way, and fight the next plaintiff, if any, in
a fresh trial. "Well maybe the plaintiff in this other case proved Tyson
sold salmonella chicken (although we think the judge erred), but that's
irrelevant because we are Perdue. Prove what *we* did, from step one."
No deterrence to harmful action. With regulations, we don't have to prove
anything about individuals, we just keep everyone safe all at once.

And all this time, because your policy has been reactive instead of
proactive, people's lives have been demolished, because companies
calculate that it's cheaper to buy off a few possible future plaintiffs
than to act responsibly to the community. (e.g., the Ford Pinto.)

> > Every time there's an
> > incident, both sides will rehash the same arguments, call the same expert
> > scientific witnesses, waste a lot of money. And little will have been
> > done to prevent future incidents.
> Again, not necessarily --- or even likely --- true. Serious penalties and
> potential liability serve to disincent socially undesirable behavior in most
> cases. In those cases where this fails, it's unlikely that any law can
> prophylactically prevent unfortunate events.

Your faith in markets is impressive. But companies (as well as people) act
"irrationally" all the time. Their is plenty of literature on this. See
Kuttner's "Everything For Sale" for some references.

For a recent example, look at Microsoft Corporation. If you want to, you
can argue that their approach was rational and brilliant. But most
observers believe Microsoft screwed up, letting their pride and sense of
mission overrun the chance for a limited settlement that would benefit
their shareholders more. Take a random Fortune 500 CEO and put him in
Bill Gates' position for the last two years, and I'll bet you the random
CEO would have made accomodations. When combined with personal profiles
of Gates by interviewers, etc. over the years, it becomes clear that Gates
was trying to further *non-monetary* goals, such as independence, even
though he knew that the stock market preferred him to accomodate. That is
"irrational" corporate behavior.

(And if you think secondary effects make Gates's decisions rational in the
long run, the same form of extended rationality could be used to argue
that selling unsafe products and losing some lawsuits is part of a
long-run rational program. But I think that view of "rationalism" is
tautological. Like Marxism or Freudianism, the theory of Rational
Self-Interest can be stretched to say that everything is always rational
self-interest, even if we, and the actors themselves, don't understand
the reasons. When a theory gets to that point, it no longer has any
explanative power.)

And in practice, when companies *are* "rational", they do their
cost/benefit analysis differently than you suggest, including their
calculated estimates of potential tort losses. I think the history of
dependence on tort law validated the Progressive reforms pushed through by
Teddy Roosevelt (a strong supporter of rugged individualism and
capitalism) and others. Countless lives have been saved by public safety
regulations, and I don't think post-facto market incentives have done
anywhere near as much.
> ...
> > E.g., 'Stop the coercive tyranny against poultry factory owners. If you
> > get sick or your son dies, you can always take the factory owners to
> > court.'
> Sounds reasonable to me.

Well I hope the poor poultry factory owner, who has a daughter in the same
class as your daughter, didn't skirt the laws regarding childhood
immunizations. If his daughter gives measles or worse to your daughter,
will you sue him? Will you win? Will that really affect the next
Libertarian family's decision on immunizations?

Sorry, I just don't buy it. I'd rather everyone bring a doctor's note
when registering for school. It's a minor imposition that saves everyone
from potentially big hassles. It's part of living in a modern, civilized
society. And despite TomW's fears, it's reasonable and limited. But
Jeff, you don't like any public safety laws. They are all wrong, on
principle. Traffic laws? All wrong, on principle, I assume[2]. How about
regulations requiring:

+ Water treatment standards?
+ Pollution controls?
+ Medical accreditation?
+ Vehicle crash tests?

You know, we had tort law available before these regulations were created.
But tort law failed to deter bad action, and the public continued to be
harmed. That's specifically why the regulations were created!

I think you are really more concerned about any restraint on your freedom
of activity than you are about whether regulations or post-facto
consequences are more likely to achieve safe behavior. You seem to feel
that the moral cost of any imposition at all outweighs all practical
benefits. It's ironic that you expect companies to make all kinds of
rational decisions, and that's the basis of your whole philosphy here, but
you yourself can't rationally assess the cost/benefit of simple food
safety laws.

-Matt Jensen

[1] It is very, very rare that corporate officers are jailed for illegal
actions taken as corporate officers. This avoidance of personal liability
is one of the benefits of incorporation. (In contrast, when someone is
jailed for something like insider trading, they are acting as
individuals.) However, if you buy your chicken from a sole proprietor,
rather than a corporation, then the sole proprietor could be jailed for
violating a criminal statute, even if he's acting in the "interests" of
his business.

[2] "Since Mothers Against Drunk Driving's (MADD) inception in 1980, the
number of alcohol-related traffic fatalities has decreased by nearly 29
percent--saving more than 48,000 lives." -

Yes, part of that is due to awareness programs. But a large part is due
to stiffer drunk driving laws, revoking of licenses, etc. Everyone knows
about these laws. Now, tell me about a famous drunk-driving civil suit we
should all know about, a suit so ingrained in our memory that, whenever
we're about to drive ourselves home from the bar, we always
think of the huge award the defendant had to pay, and despite our
inebriated state, we stop ourselves. I don't think there are any such
suits in people's minds, nor were there any before MADD. It is the public
awareness programs and the strict public safety laws, *those* are what
have saved lives.

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