The Positive Sum Strategy Harnessing Technology for Economic Growth (1986) / Chapter Skim
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The Role of the Legal System in Technological Innovation and Economic Growth
The Role of the Legal System in Technological Innovation and Economic Growth
Pages 169-190
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From page 169... ...
Second, I shall indicate the scope and nature of the burdens placed on the legal system by modern technology and economic organization. In so doing, ~ shall trace a reciprocal relationship between Pose burdens and the constraints on technological and business activity prescribed by He legal system.
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From page 170... ...
The law not only sets limits and defines channels within which economic activity must take place, but also provides institutions that foster business activity and serve as part of the infrastructure of economic thought. Let me remind businessmen and economists of the role of property and contract in relation to the market; and let me remind them also that property and contract are legal institutions.
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From page 171... ...
Damage to the environment from pollutants emitted by a petroleum refinery or an electric power company or a steel plant or any other enterprise will be a '~social" and "external" cost only if and to the extent that the legal system so decrees. To a degree deliberately and to a degree as a collateral consequence of doctrinal evolution rooted in other phases of legal experience, it has been the legal system that has determined the allocation of the costs of environmental damage arising as a side effect of human enterprise.
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From page 172... ...
in its report emphasized a balance of functions to be served: Technology assessment consists of ~ mixture of warning signals and visions of on portunity. Warning signals arise when the analysis predicts trends leading toward adverse consequences.
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From page 173... ...
Apart from the items that are explicitly legal in the automobile's supporting system e.g., tort law, traffic regulations, and taxes many of the other items also engage the legal system in a variety of ways. The organizations for production and distribution involve corporation law; installment credit involves the law of contract, sales, and commercial instruments; zoning requirements engage real property, municipal corporations, and constitutional law; and so on throughout the range of these multiple factors.
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From page 174... ...
I believe it will serve our purposes to concentrate on the evolution of substantive doctrine in tort law relating to negligence, nuisance, and strict products liability; and on the procedures of fact-finding in law courts and their implications. This will signify a concentration on judicial behavior and common law development, with only tangential reference to the vast and complicated web of statutes that pervades our national life.
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From page 175... ...
It assigned priority to "progress," defining "progress" specifically as "improved transportation" and generally as economic grow th. Negligence anal Nuisance interface With Environmental Protection In passing from cases arising from traffic accidents to cases arising from pollution and environmental damage, the law typically shifts its frame of reference from the doctnne of negligence to a combination of the doctrine of negligence and a variegated body of doctrine known as "nuisance." A judgment of the Supreme Court of Rhode Island in 1934 exemplifies a judicial doctrine that assigned an explicit priority to industrial production over environmental protection (Rose v.
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From page 176... ...
Since it was evident that the High Penn Oil Company also intended '`to operate the oil refinery in the future in the same manner as in the past," it was necessary to supplement the judgment for damages with an appropriate injunction "to protect the plaintiffs against He threatened irreparable injuries."
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From page 177... ...
I can and do avow my opinion that in the balance of considerations Cat determine He outcome in specific cases, a trend can be discerned in the development of the tort law of negligence and of nuisance in He past half century, and especially in He past three decades, toward an assignment of greater relative weight to such factors as protection of the environment, safety in He workplace, safety on He highways, and protection of He consumer and an assignment of less relative weight to He facilitation of production and technological development. The trend has been earned to a point where judges have incorporated their own views of technology assessment into their legal opinions.
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From page 178... ...
These are questions that ~ shall examine later in this chaDrer Strict Products Liability -- -fir The mend in the tort doctrines of negligence and nuisance has been matched by a corresponding trend in the dockage of strict products liability. IN a seminal decision of the Supreme Court of California in 1963 (Greenman v.
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From page 179... ...
The issue is whether it constitutes a "defect. " The Supreme Court of California has been assiduous in protecting consumers from "design defects." Judge Tobnner, of Me Supreme Court of California, In a leading case (Barker v.
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From page 180... ...
The Oregon court responded to much Me same effect as the Supreme Court of California, except Mat it left the burden of proof upon the plaintiff and acknowledged somewhat greater concern for the possible consequences of its decision: We are mindful of defendant's argument that a lay jury is not qualified to determine technical questions of aeronautical design, and of the forceful argument by Professor Henderson that problems of conscious product design choices are inherently unsuited to determination by courts.... We do not underestimate the difficulties involved in this type of litigation.
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From page 181... ...
The meaning of the defense arid the consequences of its acceptance or rejection can be traced in a recent decision of the Supreme Court of New Jersey, Beshada v. Johns-Manville Products Corporation (90 N.J.
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From page 182... ...
To widen our perspective, I ask you now to review in similar terms what a fact means operationally to a physicist or chemist; to a paleontologist or a prehistoric archeologist in the course of research; to a historian in the regular course of work; to a newspaper reporter or to his or her managing editor; and to a businessman facing Be need to make a particular decision or to foul ate a general policy for the conduct of his enterprise on the basis of the relevant "facts." From such a comparative appraisal, it appears that a fact is the final result of a process of inquiry that varies from profession to profession and occupation to occupation; that the nature of a fact varies correspondingly; and that each t Two years later, the Supreme Court of New Jersey sharply qualified this decision, holding that the requirement of a warning by a manufacturer must be measured by whether the manufacturer knew, or should have known, of the danger, given the scientific. technological, and other information available when its product was distributed.
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From page 183... ...
How might an effort to foster an improved mutual understanding best be undertaken? A possible way to do so has been indicated by the National Conference Group of Lawyers and Scientists, established jointly by the American Association for the Advancement of Science and the American Bar Association in 1975 The National Conference Group has sponsored a general Workshop on Cross-Education of Lawyers and Scientists and workshops on particular aspects of fact-finding, such as the assessment of technological risk.
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From page 184... ...
In the 1960s, President Lyndon Johnson launched his antipoverty program and called on the American people to join him in reshaping America into a "Great Society." Social forces generated in the 1960s by President Johnson's program, together with social forces independently generated to which We Johnson program was in part a political response, gained momentum through We 1970s, producing a striking expansion of federal legislation aimed at environmental protection, occupational safety, consumer protection, and general social welfare. The new statutes applied not only to business enterprises, but also to state and local school systems and other state and local government officials, universities, foundations, the professions, political parties and candidates for elected office, and homeowners and automobile drivers.
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From page 186... ...
The current objective should be to promote economic growth, technological innovation, productivity, and international competitiveness while protecting consumers, workers, and the environment from the harmful side effects of technology and industrial indifference or mismanagement. The objective should be pursued in the endless variety of particular applications of law, eng~peering, economic policy, and business management.
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From page 187... ...
Second, the constitutional factor in the United States has increased litigation not only by adding an extra tier of judicial scrutiny, but by a specific mandate. ~ refer to the Supreme Court's decisions that have compelled the states and Me federal government to provide counsel to indigents who might otherwise have been unable to appeal from decisions in lower courts or even to litigate at all.
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From page 188... ...
Several law schools have under consideration plans for the development of new institutes of research and advanced training relating to such questions as computer law, made secrets, and the law relating to genetic engineering and biogenetics, aerospace, and medical technology. At another law school, plans are under way to launch a new journal on information law Mat win address these and other similar problems.
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From page 189... ...
1977. Interagency Task Force on Product Liability.
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