New at Reason

February 13, 2007

In a feature from Reason's March issue, Walter Olson assesses what happens when the government decides to protect you from products.

Comments

|2.13.07 @ 9:21AM|#

What happens when the government protects us?

Prices go up due to regulation and taxation. New government agencies are built to examine the issue. In the end basically nothing is done except the taking of credit for having tried to do something regardless of whether it was right, wrong or just no place for them to be to begin with.

Notice you can sue a drug maker but not the federal agency that ok'ed the drug for use in the first place. It is all about control from all angles, politicians could give a shit less about any of us, we would be well served to think the same of them.

Warren|2.13.07 @ 9:36AM|#

A good article, but it skirts the bigger issue concerning asbestos. Over the past three decades tens of billions of dollars have been wasted on asbestos removal and liability.

Workers that handled asbestos every day were at risk. However, there is no risk of living with asbestos in your walls. In this regard asbestos is like DDT, a perfectly good product with a nefarious reputation.

Dan T.|2.13.07 @ 10:10AM|#

I suppose it's a fair question to ask "should an individual be able to sue the government", but in reality it's pretty obvious why we can't.

For one, the government is the highest authority - who would hold the trial and who would have the power to enforce a judgment against it?
Second, the government sometimes has to do things that otherwise would be illegal - like sending people off to die in wars.
Third, taxpayers are not going to like having to pay more in taxes to correct errors made by people in the past. Nobody would vote for a candidate that proposed changing the sovereign immunity rule.

Guy Montag|2.13.07 @ 10:27AM|#

Great article. Covered tobacco pretty well too.

On guns he pointed out a few things I didn't know or think about, like the cities selling old service weapons without any of the safeguards that they were suing the manufacturers over. Also, not wanting any of the 'safety' features that they want to force me to buy.

Dave W.|2.13.07 @ 10:35AM|#

On the private side, shareholder liability is limited to the amount each shareholder invests. This favorable corporate law prevents plaintiffs from fully recovering their damages in many tort cases (as in this case). bankruptcy law can also be helpful for corporate investor / owners in the wake of some large tort judgements.

On the public side, the government limits which tort suits it consents to. The government is not limited in its judgement-attachable assets, the way a corporation is and cannot declare bankruptcy as easily as a corporation can.

What it means is both private and public sectors get out of a lot of tort liability, albeit under somewhat different conditions.

Which is not to say that the system is fair, but there is a lot more congruency than the "Overlawyered" guy would have you believe.

If they allowed plaintiffs to go after corporate shareholders assets, the way you can normally go after a regular person's assets when they do you tortious harm, then Barnes would be collecting a lot more of his judgement here, both from Thorpe and from the wealthy investor families who made a killing in asbestos back when you could do that.

In other words, here's a little tiny violin.

|2.13.07 @ 10:37AM|#

In a nutshell, I thought the asbestos part of the article was the weakest part, since it dealt with an emergency situation. Which is not to say that there aren't good points to be made about asbestos, just that centering your case around a world war is probably not way to go.

Indeed, some of us might argue that far too many bad decisions had made because somebody said "It's just like 1939/1941/1944/1945/(insert-year-here)!"

The other parts of the article were good, however.

Guy Montag|2.13.07 @ 11:36AM|#

In a nutshell, I thought the asbestos part of the article was the weakest part, since it dealt with an emergency situation.

Actually, I thought it was quite good and reminded me of some things that I had forgotten, or were stairing me right in the face, like the fact that the work area was controlled by the government.

I might be sympathetic to the emergency situation argument if I did not have almost 30 years experience around the Defense Department. Generally it is just because the boss does not want to be bothered with more things, like proper ventilation when he thinks reasonable comfort is a good enough standard.

Dan T.|2.13.07 @ 11:45AM|#

Maybe the idea for both limited liability for both the public and private sector is that not much will ever get done if we don't allow companies and government entities some leeway to make mistakes from time to time.

grylliade|2.13.07 @ 12:01PM|#

One small quibble: could whomever transfers the print articles to web articles learn to use HTML properly? Several times during the article the author used an em dash - like this - and every time a hyphen was used instead. This isn't the 1980s; you don't have to use two hyphens to simulate an em (or en) dash. HTML has these things called "entities." To print an em dash, simply type —. Not hard. And it will increase the readability of your article 1000 %.

I won't count off for not using thin spaces around the em dash. :-)

Dave W.|2.13.07 @ 12:57PM|#

Maybe the idea for both limited liability for both the public and private sector is that not much will ever get done if we don't allow companies and government entities some leeway to make mistakes from time to time.

I think that is correct. while I often have sweeping visions for reform (see, prison rape thread recently, patents thread), I sort of like the status quo as far as limited liability goes. Both on the private side (corporations, corporate bankruptcy) and on the public side (selective immunity).

I have from time to time suggested that much of the punitive damages we now have should be injunctive, rather than money damages. I would rather see a court appoint Exxon's board for a couple cycles, or force a couple of transparency by-laws into Exxon's charter, rather than having plaintiff's lawyers fight over monumental sums they did not really earn. OTOH, I wouldn't really like to see punitives replaced with nothing, which is what I imagine walter Olson would like to see.

i just think that Olson's point that the public sector has it so much better than the private sector in the area of tort liability is a misplaced argument when all things are considered in proper perspective.

|2.13.07 @ 1:02PM|#

I'm with Guy on this one. The 1930's exposure protocols were jettisoned because they were too onerous? It sounds to me like someone invoked the "national security" argument because he was too lazy to see the job done right.

And, as thoreau points out, that's a common theme in government: declaring a "crisis" that enables you to escape your own regulations, oversight, even the Constitution.

Mike Laursen|2.13.07 @ 4:03PM|#

For one, the government is the highest authority - who would hold the trial and who would have the power to enforce a judgment against it?

Assuming that power is arranged in a hierarchy. A government could be set up where power is balanced among different entities. Taking the game rock-paper-scissors as an example, imagine that we had a Federal government comprised of three branches with the power to check each other -- oh, never mind, I'm talking crazy talk.

Larry A|2.13.07 @ 4:43PM|#

On guns he pointed out a few things I didn't know or think about, like the cities selling old service weapons without any of the safeguards that they were suing the manufacturers over. Also, not wanting any of the 'safety' features that they want to force me to buy.

This continues. If you look at any of the bills mandating safety features like magazine disconnects (where the gun won't fire if the magazine is removed) you'll find a provision that the mandated safety feature, supposedly essential so that people will have "safe" guns, doesn't apply if the firearm is sold to military or law enforcement.

Don't we want our soldiers and cops to have safe guns?

Of course. But if the military/law enforcement loophole isn't included the military and law enforcement will block the law from being adopted.

What we have is a situation where the experts who select military firearms, the experts who select law enforcement firearms, and the experts who write about and design civilian firearms believe that the magazine disconnect is a flaw, not a feature. The only experts who like the disconnect are the anti-gun experts, who seldom if ever take a firearm to the range and have to hassle with a magazine disconnect.

Rule of Thumb: If a law that says it improves safety excludes government, it isn't about safety, it's about control.

Guy Montag|2.13.07 @ 8:41PM|#

Rule of Thumb: If a law that says it improves safety excludes government, it isn't about safety, it's about control.

Nail on head.

Same with lots of other crap, like 'hybrids' that the government does not use.

Dave W.|2.14.07 @ 8:21AM|#

I think it is an interesting question as to why the government opens itself up to any lawsuits at all.

I mean if Exxon-Mobil or Microsoft got "sovereign" immunity somehow, how many suits would their boards of directors allow to go forward against their respective corporations? I am thinking "none." It is kind of touching the government allows any tort suits at all against it.

Reflecting on it, one (if one is not obsessed with the evil of modern lawyers) can even understand that the government would pass most product liability back to the manufacturer. In the private sector, generally speaking, product liability is going to be first and foremost the manufacturer's fault, like when a valve stem on a motorcycle tire is defective or e coli gets on the lettuce while it is growing in the ground.

In fact, the rule that product liability, in sovereign immunity cases, is supposed to pass back to the manufacturer encourages government to contract work out, insread of doing the manufacturing itself. This really benefits companies like Halliburton, because they would not exist, at least not in present form, if the US government kept all its work in-house. I wonder whether Mr. Barnes asbestos suit could have proceeded against the government if the government had actually made any of the asbestos? I am guessing "yeah."

Now, as Olson's article points out, the rule of passing liability back to the manufacturer does not make sense when the product becomes unsafe, not because of how it is manufactured, but rather how it is used. If the government had taken appropriate precautions with the asbestos, Mr. Barnes might not be sick now. Similarly, if a government cafeteria negligently allowed e coli to get on the lettuce at some government cafeteria, then it is tough to see why liability shouldn't attach to the government, rather than the lettuce manufacturer.

Which brings us to the issue of what the "sovereign immunity" rule should be in product liability type tort cases. Now that I have had a day to think about it, I have figured out what the rule should be:

The government should be allowed to claim "sovereign immunity" and pass liability back to the manufacturer in cases where a private distributor of product could pass liability back to the manufacturer if a private distributor were standing in the government's shoes, as it were. However, in cases where the distributor is actively negligent, such that the manufacturer would not be the "most guilty" party, then the government should allow the suit to proceed against it, as if it were a distributor who had done a no-no independent of what the manufacturer supplied it.

My proposed rule would be tough to apply in the asbestos cases, but probably considerably easier to apply in the vast majority of product liability cases, where the division of "guilt" between manufacturer and distributor would be more manifest.

Guy Montag|2.14.07 @ 8:31AM|#

What is really pathetic is when the government sues manufacturers and entire industries for problems that the government itself caused. The article gives three products as examples.

In other news, Mayor Ray Nagin and former police chief Warren Riley are being held in contempt of court again in a lawsuit brought against them by the National Rifle Association for their illegal confiscation of firearms case.