January 8, 2009
Shapo on Experimenting with the Consumer
Marshall S. Shapo (Northwestern) has posted an overview of his latest book, Experimenting with the Consumer: The Mass Testing of Risky Products on the American Public on SSRN. The book is available for purchase through Greenwood Publishing Group. Here's the SSRN overview and table of contents:
We almost all become subjects of experimentation on human beings just by living in this society. We usually tend to think of experiments on people as carefully controlled procedures done by doctors in white coats. But every time a company launches on the market a new product that may carry some risk, it is experimenting on us, the general public. Advertisers in various kinds of media trumpet the benefits of new products, but they usually do not tell us about potential risks - or uncertainties about danger - that may be associated with those products. As a rule, innovation makes our lives better, but sometimes experimentation on mass markets requires a trade-off; it entails risk to some who unwittingly are the subjects of those experiments.
The devil is in the details of experiments on mass markets: from drugs and devices to chemicals that are used in workplaces and that leak, or are dumped, into the environment. It is scientifically complicated, and expensive, to find out which products cause significant risks to human beings. Scientists themselves often disagree about the level of acceptable risk. If we understand the nature of mass market experimentation, that understanding is a first step toward protecting ourselves.
SOME MAJOR THEMES:
* There are constant wars over risk and safety among many groups: Scientists against scientists, scientists against doctors, product sellers against other sellers; manufacturers against government agencies; and claimants' lawyers against sellers and agencies.
* There are ongoing competitions between consumers who are averse to taking risks with safety and those who would like to take risks in hopes that they will gain in their fights against disease, or enhance their sex appeal, or acquire a broad range of new consumer products.
* Media are powerful forces in many aspects of mass experimentation. They affect our views not only through direct to consumer advertising of products that formerly were entirely the province of prescribing physicians, but also through news stories that shape the views of consumers about risks that are difficult for lay people to understand.
The book ties together the AIDS patient, the woman who gets multiple breast implants, the man who uses drugs for erectile dysfunction (or maybe only to generate more and better erections), the postmenopausal woman who wants estrogen therapy, and the employee who unknowingly may be confronting the risk of powerful substances used in the workplace. The book projects the histories of these specific topics to embrace all people who are the subjects of human experimentation-in the clinic, in their purchases of mass market products at the pharmacy, at work, and in the environment generally.
TABLE OF CONTENTS:
Chapter One: EXPERIMENTATION: A SURVEY AT TRENCH LEVEL
Chapter Two: HIV/AIDS DRUGS: SPEEDING UP SCIENCE, UNDER POLITICAL PRESSURE
Chapter Three: BREAST IMPLANTS: A PARABLE OF LAW'S RESPONSE TO IMPROVEMENTS ON NATURE
Chapter Four: TREATING THYSELF - FOR MEN ONLY: VIAGRA
Chapter Five: ESTROGENS-A GATHERING OF DATA, A GATHERING STORM
Chapter Six: ESTROGENS - THE STORM BREAKS; A STRUGGLE OF MEDICINE, LAW, AND POLITICS
Chapter Seven: EXPERIMENTS AT THE BILLIONTH LEVEL: NANOTECHNOLOGY
January 5, 2009
Baker on Liability Insurance at the Tort-Crime Boundary
Tom Baker (Penn) has a new article posted on SSRN titled Liability Insurance at the Tort-Crime Boundary. While it doesn't directly discuss mass torts, its implications might be of interest to readers. Here's the abstract:
This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through the application of standard insurance contract provisions that exclude insurance coverage for some crimes that are also torts. Perhaps less obviously, liability insurance also can draw parts of the tort and criminal fields together. For example, professional liability insurance civilizes the criminal law experience for some crimes that are also torts by providing defendants with an insurance-paid criminal defense that provides more than ordinary means to contest the state's accusations. The crime-tort separation in liability insurance cannot be explained by economic incentives, alone. Morality matters, too. The fact that liability insurance sometimes provides coverage for criminal defense costs suggests that liability insurance institutions could cover a broader swath of crime torts than they do, providing further support for the claim that consequentialist reasoning, alone, cannot explain the observed relationship between liability insurance, torts, and crime. The tort-crime separation reflects and reinforces a concept of liability insurance as protection for defendants, rather than as a fund for victims. In turn, this concept of insurance reflects and reinforces an understanding of tort claims as encounters between particular plaintiffs and defendants, rather than as a price setting or loss spreading insurance mechanism.