David Brown had an interesting piece in yesterday’s Washington Post Outlook section, titled Over-Ruled. Brown discusses the dense network of rules that, as we now all know, complicated efforts to provide adequate relief in the wake of Hurricane Katrina. But Brown’s basic point highlights a very dangerous phenomenon.
American society is strangling itself in an attempt to avoid blame. Our entire cultural ethos is drifting further and further towards predictability and stability, and further away from initiative and innovation. By definition, initiative involves risk. Try something new, and you can never be quite certain how it will work out. That uncertainty, in turn, means that people might get hurt. And hurting people exposes the initiation to massive penalties. In any rational system, we would find a way to differentiate between reasonable and unreasonable risk--and then to promote the former while deterring the latter. Sadly, that’s not what we do.
These days, we invariably begin with a web of complex (and often self-contradictory) regulations. These regulations serve as prior restraints on behavior. Those who adhere to the regulatory regime are presumably behaving responsibly. Those who do not, are not. We then top it off with an extreme liability regime, in which we reassign blame after the fact. Historically, we reassign liability only in cases of negligence. Over the past half-century or so, though, we have developed numerous regimes that reassign liability whenever a bad outcome occurs, almost without heed to the care paid to minimize the risk of that bad outcome. Rather than placing the burden on a plaintiff to prove negligence (where tort law technically places it), we have edged into a system where negligence is presumed when an outcome is bad; in practice, we expect defendants to prove non-negligence.
Getting back to hurricane specifics for an example, consider the tragic explosion of one of the buses evacuating South Texas in anticipation of hurricne Rita. With perfect hindsight, we know that Rita was no Katrina, that the outcome would not have been tragic had we not evacuated, and that a busload of people (as far as I know, the only fatalities related directly to either Rita or Rita preparations) would still be alive today. Questions: Should the evacuation have proceeded anyway? Should we have applied a careful screening mechanism to ensure that only trustworthy buses or bus operators participated in the evacuation?
The answers should be simple. Of course we should have evacuated. Particularly in light of Katrina, it would have been irresponsible not to do so. And of course we should have prohibited buses known to be dangerous from participating. But a procedure that made government officials investigate, cross-check, and evaluate the capabilities of every participating bus would have been a disaster. They would have slowed, and perhaps halted, the evacuation.
I am certain that an inquiry into the bus explosion will follow. You can bet that a civil lawsuit will follow that. And if it turns out that the bus operator was negligent, a competent jury should find the bus operator liable. But that’s where it should end. The government’s decision to draft fleets of private buses in the cause of evacuation substituted a lesser risk for a greater one. It is tragic that even under a lesser risk some people died, but it should not be a cause for government liability.
The buck has to stop somewhere. If we want to reclaim our cultural leadership in the areas of individualism, initiative, and innovation, we’re going to have to rethink our approach to liability. Lighten regulatory burdens, trust people to make competent decisions, and hold them liable only when they’re negligent. The rest of the time, we’re just going to have to let the universe unfold as it will--despite knowing full well that such unfolding is often “unfair.”