It's not clear that there's a single grand moral to be drawn from these examples, or the others that might be added from other fields. It's not that government officials necessarily should be arraigned with having acted in bad faith or wantonly exposed the public to danger; you could argue in their defense that they were creatures of their time, or muddling along with imperfect knowledge, or doing their best to balance complex risks over the short and long term. What are we to make of the historical circumstance that government agencies long ago affirmatively specified the use of lead-based paint in many public buildings, despite dangers known even then of lead ingestion by children? Lead paint was perceived as offering sanitary advantages because it was easier to clean than cheaper kinds of paint. Maybe it seemed like a good bet at the time.
The temptation to assign blame to actions of the past, sometimes the distant past, based on today's up-to-date standards, is an invitation for unfairness, whether the actions being second-guessed are private or official. It's possible to argue that if there were ever a time to cut safety corners in pursuit of a greater goal, the Victory Ship era was that time. By the same token, though, many of the peacetime civilian uses of asbestos-the best known was in fireproofing-were also motivated by noble goals of saving and extending life.
What about sovereign immunity? Currently, government entities do waive their immunity to being sued in a variety of circumstances, including many "routine" sorts of accident settings (road crashes by public vehicles, slip-falls in office lobbies), employment claims, and some others. We certainly shouldn't jump to the conclusion that the government should waive immunity across the board and begin inviting any and all lawsuits. One reason is that the costs of such a waiver would chiefly fall on innocent taxpayers who might land on the hook for many dubious claims along with those that seem morally compelling. Another is that we do not necessarily want the courts to second-guess every policy decision or instance of lenity by a government agency: Imagine if after every air crash lawyers could sue the FAA demanding money on the grounds that it should have been regulating airlines harder in the first place. Even the sad asbestos saga does not settle the question-for which there are decent arguments in both directions-of whether the federal government should chip in to an asbestos-compensation trust fund in recognition of the Navy's role.
What's hard to escape is the feeling that we often judge private risk-creators by vastly more demanding standards than public ones. As we've seen, government generally cannot be held to account for exposing individuals to injurious products even when, as is so common, less lucky private parties are being made to pay damages over the same incidents.
Maybe it's time to discard the caricature still so much favored in some circles, in which profit-making entities wear the black hats and public servants the white. We shouldn't jump to the conclusion that governments necessarily do worse than businesses in preventing risk to the public. But there isn't much evidence that they do better.
Walter Olson (editor@pointoflaw.com) is a senior fellow at the Manhattan Institute and the author of several books, most recently The Rule of Lawyers. His websites are Overlawyered.com and PointOfLaw.com.
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