Rubin’s Three Major Forces for Consumer Safety and Tort Law: Analytical Essay

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In the United States, torte law has become a major issue that has gotten out of control. In the nineteenth century, classic tort has been identified as a civil wrong, other than a failure of contract that causes injury where a victim can get a judicial remedy- in the form of damages. This broad definition requires clarification in many ways, particularly in two aspects. Firstly, the operation of tort law involves a unique system with related rules, this includes not only substantive rules of liability and conduct, but also evidentiary rules, damage rules, concerning proof, and procedural rules concerning trial. One result of this complexity is that ideas to reform tort law have including changes in all of these types of rules. From a conceptual level, any definition of tort law has to recognize this interconnection and the resulting arbitrariness of schemes for drawing lines between the substantive rules of tort liability in relation to rules concerning evidence, damages, and procedure. Second, tort law encompasses such a broad range of “wrongs” that there can be no meaningful test or definition of a wrong. The central concern of the tort system is to address claims for a personal injury caused by negligence, and many claims that negligence is a basic foundational principle to identify wrongdoing. However, tortious wrongdoing has an open-ended, contingent quality, which restricts such attempts to develop a universal basis for tort liability for accidental injury.

In the United States, the tort system addresses wrongs by requiring the wrongdoer to pay compensatory money damages to the victim. This needs to be done in order to allow the victim to have the position they would have occupied if the injury had not been caused by the defendant's wrong. These money damages compensate for two types of losses noneconomic losses like mental distress and pain, and lastly the economic losses such as medical bills and lost income. When looking at a case involving grave amounts of wrongful conduct like intentional or reckless actions, the tort system might also grant punitive damages to the victim. The tort system does very little to compensate for accidental injury in the united states, this is because tort law focuses on wrongdoing. The system does not generally provide compensation for the injurer if they weren’t at fault. In addition, the system does not provide compensation, or where the amount of loss is too small to be worth the cost of litigation. Even where a wrongdoer has insurance or assets, the tort system will not provide recovery for injury unless the victim makes a claim. When discussing compensation systems other than tort law, the united states has a diverse set of intersecting schemes. For example, almost all workplace injuries are covered extensively by worker's compensation, rather than tort. The costs of accidental injuries are also covered by no-fault auto insurance schemes in some states, by private first-party insurance schemes like life insurance and health insurance, and by public schemes like Medicare and Medicaid.

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In the Ruben reading, he argues that when looking at tort law and regulation, the market is the most important force for safety. Ruben goes on about safety, claiming that it is a normal good and as the income level increases, accidental death decreases. He also points out that ambiguous goods as are goods that have increased and decreased safety. An example would be when looking at a sick patient, who might take medicine to cure a disease but the medicine could have side effects. If the patient gets sick after taking the medicine, it may be because of an underlying sickness or due to the Sid effects of the medicine. It's important to realize how many don’t consider third parties or externalities when making a transaction. Individuals think of themselves when making transactions and not others. Therefore, tort law and regulations improve the safety of third parties. Markets are safe for consumers but in instances where third parties or information is lacking, tort law of regulation might be better.

Rubin explains the three forces for consumer safety, which is tort law, regulation, and the market. According to Ruben as incomes increase, accidental death rates, a measure of safety, are reduced. Higher incomes lead to lower death rates, and these coefficients are statistically significant. Regulators seem to pay sufficient attention to market forces. While some regulation is justifiable because of lack of consumer information, much is not. Even when provision on information would be a reasonable remedy, the agencies will often directly regulate. However, lack of information about alternatives can lead to harmful regulation in the case of ambiguous goods. Regulators appear to ignore the distinction between first-party and third-party effects. Give an example of where regulation should be used is when consumers are misinformed about risks and underestimate risks, because consumers may unknowingly purchase risky products, the solution to this would be to provide the information that is missing.

For example, the pharmaceutical industry, the Food and Drug Administration could require manufacturers to indicate that some drug hasn’t been approved by the FDA, and allow consumers to take their chances if they so desire. But agencies do not like the approach and avoid it unless it's forced on them, as in the case of cigarettes and dietary supplements. However, not all consumers would purchase the product even if they were properly informed, so regulators would propose a ban. In doing this, it also raises a danger of overreaching, regulators may not understand what risks consumers might be willing to take, for example, many consumers suffering from arthritis would willingly use Vioxx, even though they are aware of the apparent risk of heart attacks. When looking at cigarettes, regulators would like to ban the sale of cigarettes, but they don’t have the power because voters who smoke would punish elected representatives if this were allowed. Instead, regulators have required extensive warnings and limits on sales. In conclusion, based on the lack of information in some arguments can lead to overregulation. There is a risk of overregulation in many markets, most fully demonstrated in the case of the FDA regulation of drugs. Overregulation is more prominent in the class of ambiguous goods because there is an asymmetry with respect to some risks.

In classic tort law dealing with accidents between legal strangers, more specifically auto accidents, is a reasonable way to reduce risks from driving. Although, expansions of tort law into non-stranger areas, such as product liability and malpractice, have extensive problems. Tort law is the most expensive method of providing safety because of administrative costs, and high transactions, including legal fees. Furthermore, it’s not clear that this branch of law makes products safer, for example, medical care and drugs- more expensive, it might even increase risks. This proposition is consistently supported by empirical evidence. Tort litigation focuses on ambiguous goods in different ways. Half of the litigation groups on the American Association for Justice website specialize in litigation involving ambiguous goods. Some of the reasons lawyers focus on ambiguous goods, can be because people using goods are already in danger to a degree. Certain unfortunate situations like death are likely to occur in the case where someone is already sick or injured. However, if the person was already in a bad situation it’s not always possible to determine if the good or service was responsible for the harm suffered. In addition, injurers in situations like these, specifically doctors, or pharmaceutical companies, are wealthy or have insurance, which as a result makes a perfect target.

In conclusion when analyzing Rubin’s three major forces for consumer safety, such as markets, regulation, and tort law. Markets are the key to the source of safety, as well as the most important. The reality and workings of the market for improving safety are not evident to consumers. Situations such as these create a influence for regulation and tort law, which results in disorder. Third-party effects and information deficiencies are the causes of a lack in optimal amount of safety from markets. In addition, when discussing classic tort law, one can see how it solves many externalities, for example when looking at automobile accident cases.

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