Institutional Biases in the Legal System's Risk Assessments
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Description
We tend to envision the legal system, particularly its adjudicative component, as a mechanism for redressing a variety of injuries to which persons are susceptible. Persons who engage in negligent conduct, manufacturers who produce defective goods, even those whose behavior is socially desirable and thus escape the opprobrium of “fault,” may be held accountable when their activity causes harm to others. Nevertheless, we do not rely on legal accountability to remedy all the slings and arrows of life. Those who suffer the hazards of growing old, of natural disaster, of genetic defects, find little relief in the law. In short, the legal system-at least at first glance—seemingly has little to say about “natural” as opposed to human-caused or technological hazards that pervade society. This appears quite appropriate, given the pragmatic limitation that the legal system functions only when there is an entity subject to its adjudicative or regulatory mandate. Natural forces simply fall outside the realm of those who can be held accountable. On reflection, however, this dichotomy between the natural and the technological seems too simplistic. For when technology intervenes to reduce the probability or consequences of natural disaster, we subject those using the technology to high standards of care, notwithstanding that we might be worse off had they never intervened at all. Thus, those who enhance the quality of life by constructing dams to restrain flood waters, manufacturing vaccines that stave off lethal disease, or generating power without which we would be at the mercy of the elements, may find themselves subject to legal sanctions should their risk-reducing measures occasionally go awry. That those who reduce the consequences of natural hazards are held responsible for their injury-producing activity suggests more than a social desire to compensate the injured. That objective would be accomplished by a social welfare scheme, void of the time and expense of a tort or regulatory system. The pervasiveness of the legal system suggests that society has additional concerns for the ways in which we minimize the total quantum of risk. Intervention by the legal system indicates a belief that legal rules can serve as incentives for socially desirable behavior. Thus, we can employ legal rules that induce private risk creators to serve as surrogates for the rest of us in determining the optimal level of natural and technological risk. Ideally, the adjudicative component of the legal system—imposition of liability on risk creators—accomplishes this objective by imposing on injurers the costs of harm they cause. This process forces risk creators to internalize all the consequences of their conduct and thus induces them to compare social costs with the personal benefits of any activity. Presumably, only when the latter exceed the former will a prospective injurer engage in a risky activity. Thus, even the most self-interested actor is persuaded to consider the interests of others in deciding whether to generate a given level of risk. Similarly, the regulatory component of the legal system signals regulated groups that certain risks will not be tolerated or must be taken only under tightly controlled circumstances, enforced through the threat of fine or revocation of license necessary to continue in the risky business. This is not to say that we seek some utopian “riskless” world. To the contrary, legal doctrines, such as torts and nuisance, that permit redress of noncontractual harm largely permit exceptions to liability where the injurer has acted “reasonably”—a term often understood as action that, while risky, confers sufficient benefit to justify the risk. Even under modern concepts of “strict” liability for defective products, evolving principles of law require that the product be “unreasonably” dangerous before injurers are required to compensate victims. Thus, products that impose harm on occasional victims but confer benefits on a substantially larger population may not bear the costs of the injuries they cause, at least if the victim is deemed to have been adequately warned of the risk. The theory that assigns the enforcement of this internalization process to the legal system is best explained by basic economics. If society seeks an optimal level of risk, we must have both a forum for assessment and a class of parties interested in using that forum. If potential victims of technological risk are given “rights” (e.g., a right not to have their property polluted or a right not to be subjected to contraceptive devices that induce infection) and a mechanism for redress of infringement of those rights (e.g., the courts), then those injured have incentives to make viable claims that the technologies that injured them were not worth the risk. In short, the adjudicative component of the legal system provides the necessary incentives for victims to act as private attorneys-general for the rest of us in the debate about acceptable risk.
Source Publication
Nothing to Fear: Risks and Hazards in American Society
Source Editors/Authors
Andrew Kirby
Publication Date
1990
Recommended Citation
Gillette, Clayton P., "Institutional Biases in the Legal System's Risk Assessments" (1990). Faculty Chapters. 735.
https://gretchen.law.nyu.edu/fac-chapt/735
