Jewish World Review Sept. 16, 2003 / 19 Elul, 5763

Thomas Sowell

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Risky business | One of the signs of our times is a recent ruling by a federal judge that those who lost loved ones in the September 11, 2001 terrorist attacks can sue the planes' manufacturer and the owners of the World Trade Center, among others. This extraordinary — indeed, unique — terrorist attack was "foreseeable," according to Judge Alvin K. Hellerstein in New York.

By the same reasoning, it was "foreseeable" that there would be jackasses like Judge Hellerstein on the federal bench. Similar judges have allowed our courts to become clogged with frivolous lawsuits and turned law into an instrument of legalized extortion.

Worst of all, they have fostered a legal mindset in which virtually every tragedy is seen as the fault of the nearest source of "deep pockets." Often those deep pockets are nothing more than the sum total of a lot of much shallower pockets belonging to taxpayers or stockholders.

The argument is that Boeing was "negligent" in its design of the planes that crashed into the twin towers in New York because it did not make the doors to the cockpit more resistant to being forced open by terrorists. The owners of the World Trade Center were likewise charged with being negligent in not providing "adequate and effective evacuation routes and plans."

Since virtually anything can be considered "foreseeable" in retrospect, does this mean that unlimited resources should be used to guard against every remote contingency? And that a failure to do so represents "negligence"?

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Lawyers have played this game with all sorts of products, whose manufacturers have been sued even when those products were used contrary to plain instructions and in reckless ways that no normal person would have expected anybody to use them.

How much of this represents a resentment of people with money and how much is honest mush-headedness is anybody's guess. Unfortunately, there is much hopeless lack of realism in many discussions of risk, whether in or out of courts of law.

There is, for example, the pious statement that "if it saves just one life, it is worth whatever it costs." People say things like that when they want to puff themselves up as caring or when they want to win votes from those who don't bother to think through what they are saying.

In real life, nobody acts on that principle. People don't give up boating, skiing, or rock climbing, even though they know that many people lose their lives in these recreational activities every year.

You probably wouldn't buy a newspaper that was fireproof because it would cost too much, even though the paper you are holding now could catch fire and end up burning down your home with you in it.

Most people behave more rationally than they talk. That is why sweeping statements about avoiding risk prevail in places where words are a magic currency, such as among the intelligentsia or in courts of law. Centuries ago, Thomas Hobbes said that words are wise men's counters but they are the money of fools.

Today, words are the big money — in the millions — of tort lawyers bringing frivolous lawsuits with the help of judges like Alvin K. Hellerstein.

The idea that all risks should be reduced at all costs — or rather, while ignoring costs — has spawned many hysterical safety crusades, in addition to many frivolous lawsuits. But wealth is in fact one of the biggest safety factors.

Hurricanes, earthquakes and other natural disasters can kill hundreds of times as many people in a poor country as they do when they strike a rich country. All sorts of diseases that have been wiped out in rich countries still plague poor countries.

Hurricane Andrew in 1992 was the biggest hurricane ever to hit the United States but it did not kill one-tenth as many people as were killed by a Texas hurricane in 1900, when this was a poorer country without the massive resources used to predict and prepare.

Another way of saying the same thing is that inhibiting the growth of wealth costs lives. That is why "if it saves just one life" hugely expensive precautions against remote risks can cost more lives than they save. This is not just killing the goose that lays the golden egg, it is in effect killing people as well.

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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, "Controversial Essays." (Sales help fund JWR.)


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