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]]]]]]]]]]]]] ARE WE QAFRAID OF THE FUTURE? [[[[[[[[[[[
(05/22/1989)
Peter Huber
[Peter W. Huber (1952-) holds a doctorate in mechanical
engineering from MIT and a law degree from Harvard. He is author
of Liability: the Legal Revolution and Its Consequences (New
York: Basic Books, Inc., 1988)]
[From Reader's Digest, December 1988, pp. 191, 192, 194]
[Condensed from Forbes, 13 July 1987]
[Kindly uploaded by Freeman 10602PANC]
If Henry Ford had brought out his Model T in today's
environment, the courts and regulators probably would have
stopped him. Darn thing was dangerous; why, you could break your
arm cranking it. Of course, horse transportation was hazardous,
too, but as an established technology it would have fared better
in court than the new-fangled flivver.
Our nation's bloated tort system -- the procedure by which
accident victims sue those they feel are responsible for their
injuries -- is tough on innovative businesses. Even worse, it
and the regulatory bureaucracy are combining to strangle
development of new technology. Unchecked, this could be the
greatest of all dangers to our standard of living.
Societies that lose their will to innovate are soon superseded
by others resilient enough to exploit change. The technology of
stone surrendered to copper, nomadic hunter-gatherers to farmers,
the longbow to the crossbow and the crossbow to gunpowder.
For much of the past century, the United States was the
world's center of innovation, creating the telephone,
mass-produced automobiles, nuclear power, the microchip and
countless chemicals and drugs. Measured by patents, we are still
a technological dynamo.
But the marketplace tells a different story. Administrative
agencies delay for years the introduction of new technologies.
When an innovation does make it to market, it is assaulted a
second time by a hostile liability system. Bendectin, for
example, was the best-tested morning-sickness drug on the market.
It survived strict Food and Drug Administration (FDA) review only
to be knocked off by a cascade of lawsuits. Even though it won
suits, the manufacturer found that the costs of defending its
product outweighed profits from sales.
Old technologies bear regulatory and judicial burdens, too,
but the old are innocent until proven guilty, while the new are
guilty until proven innocent. Old coal-fired power plants, for
example, have grandfather privileges, exempting them from current
standards; new ones face stringent environmental controls.
Selective breeding of plants and animals is largely unregulated.
But genetic engineering -- which can achieve identical or
superior results far more economically -- is often regulated by
at least five separate agencies [National Institutes of Health
(NIH); the United States Department of Agriculture (USDA); the
Environmental Protection Agency (EPA); the Food and Drug
Administration (FDA); and the Occupational Health and Safety
Administration (OSHA)].
We -- the very society that always wanted the latest -- have
developed a bias against the new.
If change occurs at all, the small step in an established
company is favored over the great leap into a new industry.
Adding smokestack scrubbers to familiar coal-burning plants is
easy, but expensive. Switching to cleaner nuclear fuel is
difficult.
Look at what happened in the development and acceptance of new
medicines. Disopyramide for certain heart arrhythmias,
propranolol for high blood pressure, valproate for certain types
of epilepsy and bromocriptine for female endocrine disorders and
Parkinson's -- all were available to Europeans years before
Americans got them. The injectable contraceptive Depo-Provera,
developed by Upjohn in the United States, is marketed in over 90
countries, but not in ours.
What is true at the FDA is true elsewhere in Washington. The
U.S. breeder-reactor program which promises an energy source that
creates more fuel than it uses, is dead, while Japan and Western
Europe move the idea steadily forward. In this country the
future of electric power is the past: coal, the most primitive
and environmentally regressive option. Disposal of nuclear waste
is delayed by regulatory handwringing, although the technology is
well developed. France is at least a decade ahead in its use.
Field trials in genetic engineering are being tied in
regulatory knots. A bacterium [a pseudomonas, trade name
Frostban, developed by AGS] to prevent frost damage on crops was
developed in 1982, but was tested -- under excessive regulation
-- only last year [1987]. Litigation and regulatory inertia have
likewise delayed testing of a gene-altered cutworm pesticide,
gene-altered animal vaccines and enhanced growth-hormone genes
for live stock.
Our legal system aims to prevent a Chernobyl or a thalidomide
disaster. It has done all that, but in a way that makes rational
risk comparisons impossible. Coal plants kill about 450 people a
year in mining and transportation accidents and lung ailments,
while deaths from producing nuclear power in this country are
less than ten per year. [Fraction of U.S. electricity, 1986:
coal: 54%, nuclear: 17%.] Yet coal power is favored over
nuclear. Vaccines save countless lives for every one they harm,
but liability for that one tragedy can be enough to scare vaccine
makers out of the business.
Some manufacturers of small, piston-engine planes have
suspended or curtailed production in the face of escalating
liability. Beech continues to manufacture such planes but isn't
making much money on them. Its product-liability costs average
$105,000 per aircraft. This leaves most of the field to
secondhand planes that were placed on the market at an earlier
point in the liability system's spiral.
Our paralysis in rationally comparing new and old risks, then,
has made our society riskier. The media must take some of the
blame. Stories about the risks of automobiles or cigarettes are
not as big as the news of a Three Mile Island accident that hurt
no one.
The change-haters also get support from unions. Factory
workers resist robots, agricultural workers resist mechanical
harvesters, and plumbers question the safety of labor-efficient
plastic pipe. Then business chimes in. The antiplastic
plumbers, for example, are allied with metal-pipe manufacturers.
It's domestic protectionism -- a reactionary trend that raises
the cost and risks of life in the United States, and all in the
name of protecting the public.
The liability system cuts in where the administrative agencies
leave off. Until the early 1960s, liability in U.S. courts
depended on negligence -- whether the technologist was careful,
prudently trained and properly supervised. Those who met the
standard were often on the leading edge of technology. But
today's juries are asked to assess technology itself; the good
faith, care and training of the technologist is irrelevant.
This seemingly modest change tilts the entire system against
innovation. Jurors can make sensible judgments about other
individuals, but they are not experts on technology, or its
risks. When asked to categorize technologies as good, bad or
ugly, they generally decide on the basis of age, familiarity and
ubiquity. They are predisposed to spot ``defects'' in unfamiliar
technologies.
The message to scientists, engineers, executives and inventors
is: Don't be venturesome. Don't go out on a limb. Play it safe.
The constant replacement of old technologies with new ones is
the key to a civilization's survival. In this sense, our enemy
is within. We are stifled by our own do-gooders, courts and
bureaucrats. Today, the Wright brothers could not get off the
ground.
* * *
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