Implications for Legal Reform
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Description
This volume addresses the relationship between legislation and litigation as means to control the untoward consequences of certain key activities, for example, the use of firearms and tobacco. In truth regulation through litigation does not pertain only to those sinful activities that lie at the edge of the law. Rather any gainful activity that carries with it the risk of untoward consequences, such as medical treatment or the use of dangerous products, is a fit subject for inquiry. Regulation of such a wide range of activities raises many institutional and substantive questions. First, what branch of government should make the rules that determine the rights and duties of individuals and firms involved in this broad array of activities? Second, should these resulting obligations be enforced by administrative means on the one hand, or through the judicial system on the other? There is of course an obvious potential overlap between these two institutional inquiries: there is nothing that prevents the legislature from imposing requirements on the users of, say, guns that invoke administrative sanctions on the one hand and private damage actions by aggrieved individuals on the other. Indeed the legislature may authorize private persons to bring tort actions for a breach of statutory standards, and much authority says that the right to bring these actions will ordinarily be presumed by persons who suffer "special" injury at the hands of a defendant who has acted in violation of the statutory norm. Preoccupation with these institutional questions should not, however, blind us to the second part of the inquiry: is the combination of administrative and judicial sanctions socially desirable? We cannot rest content with the proposition that the higher enforcement levels perfectly correlate with improved social welfare. Rather, in assessing this and other claims about appropriate regulation, we must begin with the understanding that all human activities are subject to two kinds of error: overbreadth and underbreadth. It is possible to misstep by imposing sanctions on desirable conduct and conversely by not imposing sanctions on untoward conduct. Any aggressive effort to limit the adverse consequences of harmful conduct is likely to stifle desirable conduct too. The proper social task is to minimize the sum of errors resulting from over- and underenforcement, not just those shortfalls arising from one side alone. How that is to be done poses major questions that require a solid grasp of the institutional and substantive features of regulation. This tour of mass torts progresses as follows: an analysis of the situation with respect to gun liability, tobacco liability, and silicon breast implant cases. Next I address medical malpractice questions and insurance issues, and finally I briefly discuss class actions.
Source Publication
Regulation Through Litigation
Source Editors/Authors
W. Kip Viscusi
Publication Date
2002
Recommended Citation
Epstein, Richard A., "Implications for Legal Reform" (2002). Faculty Chapters. 405.
https://gretchen.law.nyu.edu/fac-chapt/405
