New at Reason

David Weigel | May 5, 2006

Ronald Bailey asks whether science is stripping you of your manhood - literally.

Comments

|5.5.06 @ 8:47AM|#

While I typically find Ronald's argument highly logical and persuasive.

Even a miniscule probability of damage to my or my potential children's genital areas are more than enough to get me to significantly alter my behavior.

Dave W.|5.5.06 @ 8:56AM|#

How much time and resources do we (government, industry and consumer) want to spend in chasing what have so often turned out to be phantom risks?

Some risks are phantom and some are not. If pesticide makers are made clearly responsible to pay any compensatory damages, then they will presumably do an economically efficient assessment of the risks and decide what to sell and what not to sell in light of any research they choose to do and any uncertainties they allow to linger.

It is only when pesticide makers believe they can make the profits and yet escape liability for associated harms that things go non-rational in the risk assessment area.

MP|5.5.06 @ 9:07AM|#

Dave W.,

Once we implement loser pays and professional juries, then I'll have no issue with letting litigation act as an effective risk mitigant.

Dave W.|5.5.06 @ 9:23AM|#

Loser pays may not be a bad idea, at least for class action suits. Professional juries has the same problem as regulation: the decisionmaker gets bought off. Judges and juries give you freedom from the one problem that holds back your president, your ceo, your congress, your board of directors, your FDA, your hired gun expert and even some writers:

financial conflict of interest

Anyway, the vioxx cases are beginning to provide a clear picture of what I am always on about with this stuff. There aren't many institutions that can stand up against Merckstyle money. And that is probably more the real issue than the continuous river of crocdile tears flowing at this board for frivolous lawsuit defendants.

|5.5.06 @ 9:29AM|#

I thought it had been made clear that the disappearing penises were caused by the Jews.

|5.5.06 @ 9:33AM|#

I guess I must have been exposed to negative amounts of pesticides.

Yes, that was incredibly juvenile of me.

Timothy|5.5.06 @ 9:42AM|#

I'm just wondering what AGD is supposed to have to do with anything?

|5.5.06 @ 9:47AM|#

"Once we implement loser pays and professional juries, then I'll have no issue with letting litigation act as an effective risk mitigant."

Professional juries don't work as long as you have a state providing monopoly service, for the reasons Dave noted. It could and would work in a stateless society, but that's because people would actually pay attention to and value reputation.

"Loser pays" has much less effect than many advocates believe, because reality is that a judgment is just a piece of paper. That piece of paper is only as good as the bank account of the debtor on it. Most PI plaintiffs have negative accounts and are mortgaged to the hilt. On the other hand, most PI defendants are pretty liquid. So in the end, the defendants will end up paying more, on balance, in a loser pays system.(not to mention the PR issues involved with megacorp really putting the screws to the cancer patient on her death bed). Then throw in the fact that the parties can't bargain over fees and costs, and you get perverse incentives (each party will have an incentive to spend as much as they possibly can, because winning means you don't have to pay it) and ultimately, more litigation (when the loser starts nitpicking the reasonableness of the fees assessed).

It may not be worse than the American System (I think it is, personally), but it sure won't be any better, either. I think the best option is the American System with a little more propensity to impose fees on the loser than we currently have, but in the end, that will just shift the burden from politically connected plaintiffs and defendants onto less politically connected plaintiffs and defendants.

Warren|5.5.06 @ 9:52AM|#

One sometimes gets the impression from some scientists and activists that pesticides are just pure evil developed by wicked corporations for the purpose of poisoning people, not substances devised to protect crops or eradicate disease-carrying vermin.

Too right

|5.5.06 @ 10:00AM|#

Ah, yes. The old "Your penis will fall off" juju. Witch Doctors are alive and well in the environmentalist movement.

MP|5.5.06 @ 10:01AM|#

quasibill,

Contingency fee lawyers would likely take up the responsibility of covering the "loser pays" costs. Why would anyone enter a contingency relationship with a lawyer when the lawyer gets all of the upside reward and none of the downside risk?

Also, professional juries do not have to be state run. They could easily work similarly to arbitration, which is typically transacted via a private arbitration firm.

Dave W.,

As for the Vioxx cases, until you release firms of the regulatory mandates of the FDA, it is unfair to burden them with the liability issues that FDA approval is supposedly mitigating. Only if they defrauded the FDA should there be a liability concern, and there is little evidence of that do date.

Dave W.|5.5.06 @ 10:32AM|#

As for the Vioxx cases, until you release firms of the regulatory mandates of the FDA, it is unfair to burden them with the liability issues that FDA approval is supposedly mitigating.

On this board, I have certainly advocated *replacing the FDA* with certain kinds of consumer information requirements, so, like, yeah, I hear the concern.

The unfairness to Merck of having to face both regulatory and tort scrutiny is diminished by the fact that Merck is allowed more influence at the FDA than they should have been. I also have a tough time feeling sorry for Merck because of their profitability. This is an industry that can afford a little more prudence.

Captain Holly|5.5.06 @ 10:59AM|#

Once again, Ron has written a great column that is right on the money.

But I sure miss his obligatory stock ownership disclaimers....

|5.5.06 @ 11:03AM|#

"Estrogenic-type compounds are found in some pesticides, including atrazine, mostly widely used in North America for weed control. "

The only "pesticide" mentioned in the original article is atrazine, which is, in fact, not a pesticide but an HERBICIDE.

Perhaps journalists who have no background in science should be forbidden from writing about science.

|5.5.06 @ 11:14AM|#

"Contingency fee lawyers would likely take up the responsibility of covering the "loser pays" costs."

No. Not only would this be unlikely if it were possible, it is not possible. Contingency fee lawyers are prohibited in most states ethically from doing this. There's an old french or latin term (that's escaping me at the moment) describing such an arrangement, and it's prohibited because its seen as encouraging frivolous litigation. There was a recent Ohio Supreme Court case (well within 4 years) dealing with the issue tangentially (IIRC, it had to with a service that made investments out of plaintiff's claims).

And as I said, it would be unlikely even if legal, as it wouldn't be necessary - plaintiff's lawyers know the meaning of "judgment proof" better than anyone, and they'll explain it to their erstwhile clients.

"Also, professional juries do not have to be state run. They could easily work similarly to arbitration, which is typically transacted via a private arbitration firm."

Well, arbitration is generally pursuant to a contract where the parties agreed to the arbitrator - you won't have that in torts. So choosing the arbitrator will be difficult, and the source of much conflict in and of itself - even if you go the 1/1/1 route, the "neutral" arbitrator will be tough to agree on.

And if you don't think there are major bias issues currently in arbitration as it exists in the present, you don't know step one about the arbitration market. But that problem has more to with consumers not paying attention to the fine print than with anything else - and that's because they tend to believe that they'll be saved by the state if they sign something really stupid, and/or believe that the courts can correct a biased arbitration.

|5.5.06 @ 11:17AM|#

treefroggy: Weeds may be considered pests--and Mr. Bailey SAID atrazine was for weed control. Maybe people whe can't read shouldn't blog. Just a thought.

|5.5.06 @ 11:25AM|#

treefroggy:

I think pesticide is used a broad term that includes both herbicides and insecticides.

|5.5.06 @ 11:26AM|#

I'm just wondering what AGD is supposed to have to do with anything?

T'aint have to do with anything at all.

Timothy|5.5.06 @ 11:36AM|#

I count DDT & metabolites, dicofol, organochlorines, PCBs and dioxins mentioned in Ron's article or the linked documents.

|5.5.06 @ 11:36AM|#

"The only "pesticide" mentioned in the original article is atrazine, which is, in fact, not a pesticide but an HERBICIDE."

Assuming you're right, and my memory says you are, what difference does this classification error make to the point of the article?

|5.5.06 @ 11:45AM|#

The fact that the wealthier show more deformities (in the studies that show any deformities at all) pretty much excludes pesticides as a cause.

People living in rural areas have a significantly higher rate of exposure to pesticides than do urban dwellers due to their proximity to large scale agricultural use of pesticides. They are also, on average, of lower income. If pesticides cause deformities than the deformities would track the lower income of rural people not the higher incomes of the urbanites.

As a sociological and political study, it is extremely interesting how hysterical many people are about pesticides. I suspect this comes from the same source as a fear of radiation. People fell powerless to protect themselves from a supposed threat that they cannot evaluate or control themselves. It is easy to convince them that they are being killed by an invisible, spirit like substance.

|5.5.06 @ 12:11PM|#

Captains Holly,
Re: "But I sure miss his obligatory stock ownership disclaimers...."

Do you mean something like this?:

Obligatory disclaimer: I have ownership in a penis and have concerns about the size of its portfolio.

|5.5.06 @ 12:23PM|#

Here's the big question, if these chemicals made our penises bigger instead of smaller, would we be as concerned?

MP|5.5.06 @ 12:36PM|#

There's an old french or latin term (that's escaping me at the moment) describing such an arrangement, and it's prohibited because its seen as encouraging frivolous litigation.

Contingency fees in and of themselves encourage frivolous litigation.

Dave W.|5.5.06 @ 12:58PM|#

qbill: I believe the term you are looking for is "champertry" (sp?).

I remember that it comes up in some old patent cases where the attorney buy a patent and sues on the patent. It does have a West keynote (or did as late as '91-'92).

It is sort of superfluous law now that states limit maximum contingency fees and related costs that a lawyer can collect. Now there is one restriction on contract that we don't hear too much complaining about here at HnR. Philosophically at least, this "maximum wage law" should disgust.

|5.5.06 @ 12:59PM|#

"Contingency fees in and of themselves encourage frivolous litigation"

No doubt. And in fact, I think they are a worse solution to the problem of destitute plaintiffs than the investment company solution that IIRC Ohio declared illegal (where the plaintiff could sell a percentage of his claim to raise funds to pursue litigation). It's actually a very interesting, if arcane, subject that I spent some time researching a few years ago.

Dave W.|5.5.06 @ 1:01PM|#

I think they are a worse solution to the problem of destitute plaintiffs

They are a good solution to the issue of:

should lawyers and clients be free to contract with each other as they see fit?

Captain Holly|5.5.06 @ 1:15PM|#

Obligatory disclaimer: I have ownership in a penis and have concerns about the size of its portfolio.

Does it depend on if the market is going up or down?

|5.5.06 @ 1:20PM|#

I guess I don't see why it is a good idea to have both "loser pays" laws and a ban on lawyers taking the loser pay risk on as a contingency. Reforming tort law may be a good idea, but keeping liquidity-contrained poor people from persuing reasonable and legitimate litigation seems to be rather unfair.

Captain Holly|5.5.06 @ 1:25PM|#

As a sociological and political study, it is extremely interesting how hysterical many people are about pesticides. I suspect this comes from the same source as a fear of radiation. People fell powerless to protect themselves from a supposed threat that they cannot evaluate or control themselves. It is easy to convince them that they are being killed by an invisible, spirit like substance.

Well said. I've noticed that the amount of fear a substance or hazard causes among the public is inversely proportional to the amount of control people perceive they have over it.

For example, I've met people who buy only organic food due to fears of cancer "caused" by pesticide residues, yet smoke like chimneys. There are those who would be terrified of inhaling a known carcinogen like benzene, yet think nothing of not buckling their seat belts as they drive away from the gas station.

People tend to overlook things like smoking and driving an automobile -- which are, statistically speaking, among the most hazardous things you can do -- because they feel since it's a voluntary action they can control their risk. But the idea that an involuntary pesticide exposure could slightly elevate their risk of cancer sends them into outer space.

Same Old Dave W.|5.5.06 @ 1:33PM|#

I guess I don't see why it is a good idea to have both "loser pays" laws and a ban on lawyers taking the loser pay risk on as a contingency.

Do you think that people should be allowed to sell their claims to lawyers, lock, stock and barrel?

Contingency fees are just a partial dodge around the older champertry prohibitions. My guess is that most contingency lawyers would prefer to buy out the plaintiff entirely at the outset of the litigation and then take 100% of the risks and rewards of the lawsuit.

MY PROPOSAL
Allow champertry (sale of lawsuit from plaintiff to lawyer), but only if the lawyer posts a bond sufficient to cover damages of a frivolous suit (for cases where the suit is eventually deemed frivolous). This compromise maximizes freedom to contract for lawyers and at the same time provides better protection against frivolous suits.

|5.5.06 @ 2:00PM|#

Thanks, Dave. Champerty is the word I was looking for before.

And I agree, lawyers and clients should be free to enter into any contract that they can agree to. What I meant, but didn't convey clearly at all, was that the champerty option would win out over contingency fees in a free market - more competition and transparency in the market (assuming, of course, that there isn't some sort of law limiting champerty to a certain class of buyers). It also will, IMHO, act as a better gauge of what is and what isn't a frivolous suit than any rule based system that requires a (possibly corruptible) decision maker to make a rule based decision.

|5.5.06 @ 2:15PM|#

HEDWIG ROCKS!!!!!!!

|5.5.06 @ 4:52PM|#

Ronald Bailey's article asks, "So if exposure to pesticides is declining, why would male genital abnormalities be going up?"

Because, obviously, pesticides PREVENT genital abnormalities.

|5.5.06 @ 6:56PM|#

"I'm just wondering what AGD is supposed to have to do with anything?"

Anogenital distance (AGD) is on average smaller for girls than for boys. A decrease in the distance is construed as tending toward feminization.

You're welcome.

|5.6.06 @ 11:19PM|#

Here's the big question, if these chemicals made our penises bigger instead of smaller, would we be as concerned?

"Somebody help me carry this thing up the stairs!"