thoughts on cigarettes
Consider the influential “Wade” balancing test in products liability law, which asks that liability for injury be determined by weighing the following factors:
1. The usefulness and desirability of the product-its utility to the user and to the public as a whole;
do cigarettes have usefulness? for the nicotine addict, they do — they provide his nicotine fix. are they desirable? the tobacco industry has certainly tried to make them look so; you don’t need to go further than the nearest virginia slims or lucky strike ad to know that. but what about to the public as a whole? useful? desirable? probably not — unless you start adding in the salaries of those employed by the tobacco industry, including paper manufacturers, advertising designers, the subsidization of magazine costs, etc. but do you weigh that against the direct and indirect health costs? hospitalization, lost work hours, premature death, and so on and so forth.
March 11th, 2004 at 1:50 pm
Ahh the joys of balancing tests…
And of course the practical way this works is that the judge generally gets to do anything he/she wants, assigning subjective “point” values to the listed criteria and ultimately reaching a result dictated largely by policy preference.
Then, of course, if the appellate court disagrees with the policy preferences, the judge “abused her discretion” in the weighing process, or even clearly erred (depending upon whether you characterize the weighing as involving more legal determination than factual finding).
Not that I have a problem with judicial discretion, but let’s at least be honest about what’s at stake. Not having clear rules *begs* for “judicial activism.”
Damn, don’t I sound like a cute little U. Chicago grad? Maybe I should apply for tenure at Mason. ;)