Products Liability and Innovation.

[georgemw at speakeasy.net]

On 13 Aug 2001, at 9:42, Black Unicorn wrote:

> 
> ----- Original Message -----
> From: "Eugene Leitl" <Eugene.Leitl at lrz.uni-muenchen.de>
> To: "Trei, Peter" <ptrei at rsasecurity.com>
> Cc: <cypherpunks at lne.com>; "Faustine" <a3495 at cotse.com>; <jamesd at echeque.com>
> Sent: Monday, August 13, 2001 7:49 AM
> Subject: RE: Traceable Infrastructure is as vulnerable as traceable messages.
> 
> 
> > On Mon, 13 Aug 2001, Trei, Peter wrote:
> >
> > > I hate to say this, but until software developers are held (at least
> > > at the corporate level) in some way liable for their failures, there
> > > will be little or no improvement in the situation.
> >
> > I think this is the wrong approach to the situation. Making people liable
> > stifles innovation.
> 
> I think 30+ years of active products liability jurisprudence might disagree
> with you.  Just in the automotive world and off the top of my head:  Automatic
> Breaking Systems, designed failure points (crumple zones), 6mph bumpers,
> "safety glass," shoulder belts, passive belts, air bags and a host of other
> technologies or innovations that may or may not have been developed "but for"
> litigation are most probably the result of strict liability in products
> liability cases.  

Well,  nobody can say with certainty exactly what would have 
happened in contrary-to-fact situations,  and litigation will
probably encourage some innovations while discouraging others,
but it seems to me that litigation is highly unlikely to encourage
innovation overall;  it seems to me that you are much more likely to
lose a case if your product is hazardous in a way that
distinguishes itself from the industry standard,  even if it's
safer overall,  and in any case most potential innovations don't
have anything to do with increasing safety. 
	In a more or less unregulated market,  consumers are
free to value product safety as they choose.  Legislation which,
say,  mandates air bags appears to assume that consumers tend 
to undervalue their own safety, a proposition I object to
on philosophical grounds.  Liability works more or less the same 
way.
  
>The effect is to make safety profitable- or more accurately,
> to make unsafety unprofitable. 

Right.  Safety at all costs.  The cost of safety is already too
high in most industries IMNSHO.

> See generally Posner, Hallman and the "Chicago
> School of Law and Economics," an entire movement in legal thought centered on
> the idea that you are very wrong about the effect of liability on innovation.
>

An entire movement dedicated to the idea that Eugene is
very wrong?  Now I'm jealous,  I can be as wrong as him,
wronger even.   
 
> Now less I be misinterpreted, misworded, misquoted and misunderstood by the
> various misanthropic types here:
> 
> Do I think that software should have products liability attached to it?  No.
> Do I think strict liability stifles innovation?  No.
> 
> 
On behalf of my fellow misanthropes,  thanks for the clarification.

George