]]]]]]]]]]]]]     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   Societies that lose their will to innovate are soon superseded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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