Letters

From the February 1995 issue

(Page 2 of 3)

Kudos to Robert Higgs for exposing the fallacies in Herbert Burkholz's The FDA Follies ("An FDA Fable," October). Burkholz is blind to the possibility that the FDA may be protecting us to death.

Unfortunately, Mr. Higgs commits a few fallacies of his own. He faults Burkholz for treating the Dalkon Shield IUD and the Bjork- Shiley heart valve as unmitigated disasters. Trouble is, they were.

Mr. Higgs says that the risk of the Dalkon Shield is small compared to the risk of pregnancy. But he ought to compare this risk with the risk of other IUDs. Had he done so, he would have found that the Dalkon Shield, which caused 260 septic abortions, 15 of them fatal, was indeed a disaster.

Similarly, Mr. Higgs considers the Bjork- Shiley heart valve an even greater lifesaver, and quotes the manufacturer's statement that the people bringing lawsuits "were going to die anyway, and they are alive today because of the valve." There were good heart valves, though, on the market, and Mr. Higgs should have compared the risk of the valve against them.

There are good arguments against the FDA. Defending indefensible products as lifesavers, however, is not one of them, and may give the anti-FDA cause a bad name. Alexander Volokh
Los Angeles, CA

Mr. Higgs replies: Alexander Volokh's comments are well taken. A product whose use is better than nothing may still be worse than an alternative product.

In retrospect, relative product performances for a population can be determined. Apart from the individual differences that reduce the usefulness of aggregative findings, the question remains: Who is best situated to make anticipatory judgments about relative performance?

Remember that when the Dalkon Shield IUD and the Bjork-Shiley heart valve were being implanted, they were FDA-approved and physicians were selecting them in the belief that, all things considered, they would serve certain patients better than existing alternatives. With benefit of hindsight, we may fault the doctors as well as the FDA for giving bad advice. No system can banish all risks, but the FDA's approvals give consumers a false sense of security that blunts their incentive to acquire information.

Preservation Reservations

Rick Henderson's otherwise excellent article on the property-rights movement ("Preservation Acts," October) unfortunately somewhat overstates the scope of the Supreme Court's decision in the Dolan case. Although Mr. Henderson accurately describes the new test of "proportionality" set down by the Supremes, he leaves out the reason why the court found the city of Tigard's requirement that A- Boy Plumbing (a local hardware chain) build a bike path adjacent to an undeveloped flood plain to be a taking: The city demanded title to the flood plain area for a greenway.

The court said there was a legitimate relationship between the bike path requirement and Tigard's local traffic plans. In short, had Tigard not gotten greedy by demanding title to the flood plain, Florence Dolan's A- Boy Plumbing (a local hardware chain) would not have had much of a case.

While, like other property rights advocates, I am delighted by the end result of the Dolan case, there may well be as much cause for worry as for celebration. If the court considers such exotica as greenways and bike paths to be essential public purposes in terms of land-use regulation, what isn't? Until the courts--or state legislatures and Congress--clearly tell the nation's central land planners that they cannot pass unfunded mandates on to property owners, no one's private property is safe.

Tom Holt
Visiting Fellow
Capital Research Center
Beaverton, OR

Rick Henderson's outstanding article led off with the remarkable tale of Brandt Child, whose plans for his property were ruined by the U.S. Fish and Wildlife Service's demand that his land serve as the habitat for the "endangered" Kanab Ambersnail.

Mr. Henderson incorrectly placed Mr. Child's land "outside Moab, Utah," instead of outside Kanab, Utah, nearly 200 miles to the southwest. The western expression, "You can't get there from here," applies to the drive from Moab to Kanab. It's more than 300 miles, equal to the trip from Philadelphia to Boston.