Risk Regulation at Risk: Restoring a Pragmatic Approach - Softcover

Shapiro, Sidney A.; Glicksman, Robert L.

Softcover

ISBN 10: 0804751021 ISBN 13: 9780804751025

Verlag: Stanford University Press, 2004

Inhaltsangabe

In the 1960s and 1970s, Congress enacted a vast body of legislation to protect the environment and individual health and safety. Collectively, this legislation is known as “risk regulation” because it addresses the risk of harm that technology creates for individuals and the environment. In the last two decades, this legislation has come under increasing attack by critics who employ utilitarian philosophy and cost-benefit analysis. The defenders of this body of risk regulation, by contrast, have lacked a similar unifying theory.

In this book, the authors propose that the American tradition of philosophical pragmatism fills this vacuum. They argue that pragmatism offers a better method for conceiving of and implementing risk regulation than the economic paradigm favored by its critics. While pragmatism offers a methodology in support of risk regulation as it was originally conceived, it also offers a perspective from which this legislation can be held up to critical appraisal. The authors employ pragmatism to support risk regulation, but pragmatism also leads them to agree with some of the criticisms against it, and even to level new criticisms of their own.

In the end, the authors reject the picture—painted by risk regulation’s critics—of widely excessive and irrational regulation, but the pragmatic perspective also leads them to propose a number of recommendations for useful reforms to risk regulation.

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Über die Autorinnen und Autoren

Sidney A. Shapiro is Professor of Law at the Wake Forest University Law School. Robert L. Glicksman is Robert W. Wagstaff Professor of Law at the University of Kansas School of Law.

Sidney A. Shapiro is Professor of Law at the Wake Forest University Law School. Robert L. Glicksman is Robert W. Wagstaff Professor of Law at the University of Kansas School of Law.

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In the 1960s and 1970s, Congress enacted a vast body of legislation to protect the environment and individual health and safety. Collectively, this legislation is known as “risk regulation” because it addresses the risk of harm that technology creates for individuals and the environment. In the last two decades, this legislation has come under increasing attack by critics who employ utilitarian philosophy and cost-benefit analysis. The defenders of this body of risk regulation, by contrast, have lacked a similar unifying theory.
In this book, the authors propose that the American tradition of philosophical pragmatism fills this vacuum. They argue that pragmatism offers a better method for conceiving of and implementing risk regulation than the economic paradigm favored by its critics. While pragmatism offers a methodology in support of risk regulation as it was originally conceived, it also offers a perspective from which this legislation can be held up to critical appraisal. The authors employ pragmatism to support risk regulation, but pragmatism also leads them to agree with some of the criticisms against it, and even to level new criticisms of their own.
In the end, the authors reject the picture—painted by risk regulation’s critics—of widely excessive and irrational regulation, but the pragmatic perspective also leads them to propose a number of recommendations for useful reforms to risk regulation.

Aus dem Klappentext

In the 1960s and 1970s, Congress enacted a vast body of legislation to protect the environment and individual health and safety. Collectively, this legislation is known as risk regulation because it addresses the risk of harm that technology creates for individuals and the environment. In the last two decades, this legislation has come under increasing attack by critics who employ utilitarian philosophy and cost-benefit analysis. The defenders of this body of risk regulation, by contrast, have lacked a similar unifying theory.
In this book, the authors propose that the American tradition of philosophical pragmatism fills this vacuum. They argue that pragmatism offers a better method for conceiving of and implementing risk regulation than the economic paradigm favored by its critics. While pragmatism offers a methodology in support of risk regulation as it was originally conceived, it also offers a perspective from which this legislation can be held up to critical appraisal. The authors employ pragmatism to support risk regulation, but pragmatism also leads them to agree with some of the criticisms against it, and even to level new criticisms of their own.
In the end, the authors reject the picture painted by risk regulation s critics of widely excessive and irrational regulation, but the pragmatic perspective also leads them to propose a number of recommendations for useful reforms to risk regulation.

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Risk Regulation at Risk

Restoring a Pragmatic ApproachBy SIDNEY A. SHAPIRO ROBERT L. GLICKSMAN

Stanford University Press

Copyright © 2003 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-5102-5

Contents

PREFACE........................................................ix1 Pragmatism and Risk Regulation..............................12 Principles of Pragmatic Risk Regulation.....................143 The Structure of Risk Regulation............................314 The Rationale for Risk Regulation...........................465 The Critique of Risk Regulation.............................736 Valuation Methods...........................................927 Regulatory Impact Analysis Requirements.....................1218 Pragmatic Methods of Regulation.............................1479 Promoting Accountable Risk Regulation.......................78APPENDIXES.....................................................209NOTES..........................................................215INDEX..........................................................267

Chapter One

Pragmatism and Risk Regulation

The 1950s were a time of unprecedented prosperity in the United States. Housing starts skyrocketed and highway construction reached into virtually every corner of the nation. This frenetic development helped produce a booming economy, but modern technology also extracted a considerable toll on humans and the environment. Congress responded to the growing public awareness of these events with an outpouring of legislation whose scope was unprecedented, even by the standards of the New Deal. Congress enacted comprehensive changes to air, water, and pesticide regulation; created new agencies to regulate dangerous automobiles, consumer products, and workplaces; and gave existing agencies, such as the Food and Drug Administration (FDA), new authority to regulate. According to various (conflicting) estimates, Congress during this period passed sixty-two consumer protection laws and seven occupational safety and health laws, twenty-five consumer, environmental, or social regulatory laws, and forty-two laws to regulate business.

Until Congress acted, the federal government had little involvement in solving the various problems that were targeted by the new legislation. Instead, the country had relied primarily on the tort system, administered by the state courts, to address personal and environmental injuries. The tort system promotes safety by requiring a person who has injured someone else to pay compensation if the defendant has violated applicable tort rules that define when compensation is due. Risk regulation, by comparison, seeks to reduce personal and environmental injuries before they occur by addressing the potential causes of such injuries-that is, the "risk" of such injuries. Because risk regulation operates before injuries occur, it does not require that people die or be injured, or that the environment be harmed, before it goes into effect. By design, risk regulation is preventative in character.

Since the 1970s, risk regulation has come increasingly under vigorous attack. Criticisms have arisen in academia, particularly among economists who analyze government regulation, and they have been popularized by well-financed conservative think tanks in Washington. The mantra of these criticisms is that risk regulation is "irrational." Risk regulation is irrational, they maintain, because regulators too often address problems that pose minimal risks to the public or the environment and ignore other more pressing problems. Risk regulation is also irrational because regulators too often impose solutions whose economic benefits to the public are millions (or even billions) of dollars less than the economic costs of the regulation. To address the problems they perceive, the critics would subject risk regulation to a cost-benefit test and other decision-making methodologies that generate, in their view, more rational regulation.

The goal of this book is to examine closely the nature of risk regulation and its results. Our argument is that risk regulation is "pragmatic," and that the results of that regulation likewise have been pragmatic. When we say that risk regulation is pragmatic, we mean it is consistent with the tradition of American philosophical pragmatism that dates back to John Dewey. We are not making a historical claim: we do not assert that the members of Congress consciously sculpted the legislation in light of pragmatic precepts. We do claim, however, that the structure of the legislation is consistent with pragmatic principles and that pragmatism is an appropriate baseline from which to design and implement risk regulation.

We reject the unrelenting attack on risk regulation by its critics. Risk regulation is not perfect, some of the criticism of risk regulation is justified, and we will endorse a number of reforms. The basic structure of risk regulation, as it currently exists, however, better accommodates the difficult policy issues-particularly the difficult value conflicts-that must be resolved for regulation to occur than the structure favored by the critics. Moreover, according to the existing evidence, risk regulation accommodates these tradeoffs without producing the type of extreme consequences that the critics claim. Our ultimate conclusion is that pragmatism offers a better way of conceiving and implementing risk regulation than the economic paradigm favored by the critics. Our analysis of pragmatism and risk regulation begins with a description of the origins of risk regulation and the nature of the criticisms that have been made regarding it.

The Origins

Popular consciousness began to focus on the risks associated with modern technology after scientists discovered the presence of strontium 90 in milk, apparently as a result of the radioactive fallout from the testing of atomic weapons. In the early 1960s, Rachel Carson's book Silent Spring called attention to the environmental destruction caused by the widespread use of pesticides, while Barry Commoner's book The Closing Circle warned that, unchecked, the use of "counter-ecological technologies" could result in environmental ruin. These academic warnings were confirmed by events such as the routine smog alerts in Los Angeles in the 1960s and the Santa Barbara oil spill in 1969. At about the same time, the public learned that modern medicines could injure, as well as heal, after it was revealed that Frances Kelsey, an employee of the FDA, almost single-handedly kept thalidomide from being sold in the United States. Dr. Kelsey acted before it became widely known that the use of the drug in Great Britain had resulted in serious birth defects among children whose mothers had taken it while pregnant. The issue of automobile safety came to the public's attention after General Motors admitted in a congressional hearing that it had hired private investigators to follow Ralph Nader in order to discredit his book Unsafe at Any Speed. Frequent mining catastrophes, such as the death of eighty-eight miners in Farmington, West Virginia, and the discovery of new occupational diseases, such as "brown lung," focused the public on occupational safety and health risks.

By the late 1960s, Congress had determined that the tort system, augmented by minimal federal regulation, was incapable of providing an effective response to the increasing threats to the public health and safety and the environment attributable to new technologies and development. The...

Details zur Ausgabe

• Verlag: Stanford University Press
• Erscheinungsdatum: 2004
• Sprache: Englisch
• ISBN 10: 0804751021
• ISBN 13: 9780804751025
• Einband: Taschenbuch
• Anzahl der Seiten: 285
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: Nicht verfügbar