 We have one of the most distinguished political scientists in the United States here to discuss the question of risk, risk-free societies, and that sort of thing, a subject that is of deep interest to all people of libertarian persuasion and all people who are interested in the sorts of questions that libertarians are interested in. So let us welcome Aaron Woldowski. I think my political consciousness took on a headset after the Second World War that every single command economy would prove a failure. And the only economies that got people up from poverty had a significant market element. That would have been considered unreasonable. There would have been some on one side and some on the other, even if there was a wrong increase of market. But that would have been cruel. And the extreme version would have been exactly the nearest thing we have to it, isn't it? I suppose that's the way we'll look when Big Brother takes over. We in the industrialized western nations are today not only the richest, but the longest lived and the healthiest people in the history of the world. What we'll do with this longevity in health remains to be seen. But if one wished an association between economic and social life and degree of health, meaning a high mortality and a low morbidity, then one would say that we have chosen the right way. And yet, if you tune in to the public prints, if you read the literature and see what is happening in the public policy of the United States, you get no sense of this because it's all based on the opposite premise. Any day now I expect to see on the Berkeley campus stretcher bearers carrying away the youth of the nation as they expire from any one of a number of diseases. If you read the newspapers, new disasters from chemical carcinogens, from nuclear weapons, from any aspect of technology are invented daily. Do I kid you? Or will you not find it in today's paper? How then can we explain the extraordinary anomaly where is our health and welfare gets better and better and the news gets worse and worse? So Paul's, Joe and Paul, famous figures from the Yiddish past, have their groceries on opposite sides of the street on street corners and Joe wants to drive Paul out of business. So Joe spreads the rumor when you eat at Paul's grocery you get cancer. You think that would be effective? Some of you, I suspect by the name of this convention, have some liking for capitalism or think that self-regulation through markets is not the worst thing in the world. But according to contemporary mores you are mean vicious and killers. How? It is not only indirectly that capitalism kills or that capitalism causes cancer, but if you'll stop to think about it, that you could not justify your beliefs if you thought that the ways of life and economic organization that you so foolishly prefer, wrought people's insights out, make their fingers drop off, give them cancer and even worse. To the degree that the argument succeeds that capitalism causes cancer, we will have lost every other argument there is and the psychology of fear that is diffused through this country. Again, this is not something you heard here as some form of high verbally. Tune in, read, listen and you'll hear. It's not made up, it is real. Its purpose is exactly Joe's purpose to drive out the social and economic system that radical egalitarians don't like in favor of one that they do like. You don't hear arguments much anymore about nationalization. They've given that one up. And you don't hear very much about socialization and they've given that one up. But the argument over the desirability of self-regulation through markets is not over, it has merely been transferred to a different playing field just as heinous deeds have traditionally been committed in the name of liberty. So too, the new doctors arrived who only want to improve your health who can't restrain themselves from protecting your safety. And what have you got to say? I have looked in vain, in libertarian literature, in literature by mainstream economists and Hayekin and others for any sort of argument on the relation between market arrangements and safety. And basically it is zero. The only thing that exists is a very weak argument that if people know something about the dangers they'll ask for higher wages. And the evidence on that one is indeterminate. When I titled this talk, Risk in Liberty, what I meant was that we are much greater danger of having our liberties taken from arguments about health and safety than we are from any other argument in our time. Like what? Can you imagine that the American people would submit to having every gas station regulated, cleaning, establishment, every garage fixed up place, virtually any place in this country that has any kind of storage tank, for example. This is called the lust legislation, leaking underground storage tanks. There were millions of them and we decided in this country as public policy to regulate them without knowing how many there were, what they contained, whether they had leaked out, whether leaks mattered to anybody, whether and to what extent they would do any damage. That they decided to do after the legislation. If we go to the social side of the street, I would say even as late as the 1950s it would have been unthinkable that the government would intervene in family life so that big people like you would stop beating those little kids. Of course I see an audience of potential child beaters here whom it is the task of whole armies of social workers and police to stop from wreaking havoc on small, defenseless little children who can't fight back. And when we are concerned about the havoc that is being wreaked by AIDS we also have to be concerned about the havoc that may be wreaked on the victims of AIDS and on what grounds, public health of course. If we don't watch it health is going to make Liberty sick. That in a way is the policy message that I have but I decided not to spend this time in alarmist talk because you can see it. Listen to the radio, tune in to television, watch your newspapers but rather to spend my time talking with you about how you ought to think about this. That is to say if we were decent clean living Americans and we wanted to leave our fellow citizens with better health and safety so they would not only live longer but be healthier at each successive age as has in fact been true for over a century. What sort of social and economic relations we would have? Let's start out by considering the story known to all of us of the homely potato and play the parlor game. When we were young our mothers told us quite rightly that we should eat the rough outside of the potato, the shell because it had the vitamin, true. But what mother did not know was that everything that has to that has survived evolution and that wishes to live must protect itself against predators. Plants live by chemical warfare, at least they survive by that. Therefore potatoes have a considerable amount of poison in them. Now if you were the homely potato and you had a choice and you were a libertarian potato and you were asked where should we put those poisons in the rough, dark, dirty bark or in the nice, white, smooth, pulpy center, where would you put it? The potato can stand as a very important symbol of our rationale here namely that the good and the bad things in life, that which does us good and that which does us harm are intertwined exactly in the same object. Let's suppose this were not true. Then it would be better if we had socialism. Why? Because if the question of health and safety were like this, right? If there is the tree, that's good and there is the other tree, that's sick. So there's the healthy tree and the sick tree. Why shouldn't we have a government that would choose the healthy tree? If, on the other hand, the good and the bad in life is inextricably intertwined in the same objects so that safety cannot be plucked from the tree, cannot simply be directly chosen but must be discovered and if that safety is part of a larger system with eighth, ninth and nineteenth order effects so that many of the consequences of acts are hidden from us directly then we would need a mechanism that would not make us entirely safe because that is quite impossible but would make us safer over time. Don't knock it. If the good and the bad, the healthy and the dangerous, safe and the dangerous were not intertwined in the same objects you would not need high exprocess of discovery. We could directly choose the good. Suppose we followed American public policy as it is written today in many statutes and basically that statute says that if a new substance can be shown by tests to do some harm, it must not be allowed. Well, what's wrong with this? Are we dealing with the usual moral monster who says tuberculosis for you and cancer for you and decapitation for the other one, somebody wants to kill people or is there a point to this? The point is that if you follow the rule of what I call trial without error no trial would our prior guarantees against error you will make us sick. Why would that be? So, let us contrast it of course with what we know with what is the bottom, the basis of market relations which is trial and error. That is if you don't know what the world is like and you would like to figure it out, why not pitch in and figure out how it's going to happen? You mean you're going to leave safety to the anarchy of the marketplace? Leave it to these people who are going to run hither and yawn and do God knows what? Well, if we had certainty in the world then of course again we could choose even if there was statistical uncertainty or what usually called statistical risk, namely that we didn't know we knew the kind of thing that was going to happen in the world you know, consequent upon our acts but we didn't know the probability if it's occurring then we could say we can figure out what's good in a probabilistic sense and therefore we can allow some central authority with its banks of computers and its smart people to figure out in advance what would be dangerous or not and when we see something as dangerous we would just stop it I mean one mustn't just kill people you see something as bad for people, stop it but supposing we don't have certainty and we don't have statistical uncertainty but we have something that you might call qualitative uncertainty or genuine surprise by genuine surprise or qualitative uncertainty I mean it's not only that we are ignorant of the exact probabilities consequent say upon a regulatory act or a market act but that we don't know the quality of things we don't know the kinds of things that could occur for example, possibly the best example of our time age nobody predicts it, nobody has the foggiest idea that something like age is going to occur therefore we can redraw our initial question and we might ask how can we get protection against things many of which will be bad and among there will be many things of those bad things that we have the foggiest notion would occur at all let alone what their probability of occurring would be if we follow the rule of trial without error that is of stopping things that are known to do something bad what would we do? first let's take a couple of examples and then you will see what is at stake no hospital in the world could remain open why? because of the phenomenon known as yetrogenic disease you know hospitals are not good for you if you got something real wrong you might chance it but if not hospitals make people sick because you are around a lot of germs, a lot of sick people and so on well there is a, this is significant it is a well studied phenomenon if you are going to say then that we know that people will be made sicker by going to hospitals does that mean we shut them down? hell no what we have come to understand is in large, over a larger number of cases in which some people will have the wrong leg amputated and other people will get staff infections and you know physicians will leave scissors inside people and all the kinds of stuff that happens with human beings and not only in hospitals if we were to say that couldn't be done then all of the benefits that we get from modern tech medical medicine and from hospitals would be negated for new substances that is exactly what public policy now requires let me introduce a new name for an old concept here because it helps one think properly we are aware that of the concept in economics called opportunity cost that something is worth what you have to give up for it I've coined a new word term for the same thing called opportunity benefits opportunity benefits are what you get from trial and error in the reduction of old and existing dangers see when you're thinking about new stuff you're imagining you've done just as well as you could with the world as it exists there's nothing dangerous that you want to do anything about and the question is are you going to add some danger so if you are going to say should I throw myself out of windows in front of trains every day then you get the obvious answer that you shouldn't do that so it seems that there's no possible reply to this but if you're thinking then that you are undertaking all sorts of new ventures trying new things some will do some good and some will do some bad and among the good things that will happen is that existing dangers will in fact be reduced when you don't have trial and error when you have trial without error no trials without prior guarantees against error what happens to you is that you can no longer engage in the steady reduction of existing hazards I pause for a moment my left student comes to me and says something in funny social sciences which I will interpret should I do a study of a not existent dependent variable so I say no Johnny you should not try to explain what never occurs that's too hard you should try to find some trend that actually does occur but what are we doing in the field of risk then we are trying to explain we're all getting sicker you show me the trend otherwise every accident rate now the man is down almost every medical condition has improved even with cancers if you control for age right if you would allow me my kids were young I took them down to a place with marvelous beaches along which are marvelous beaches in a good restaurant called Pescadero and has a little cemetery and one thing you learn by looking at that cemetery is whole families are gone in the early 20s and by the early 30s four, five kids and parents they're all departed at the turn of the century here right so if we see that we're all that even that in the old days people lived much shorter and now we live much longer even with cancers you know there are many different types when you control for lung cancer right for smoking then almost all not quite all go down and overall the trend is very good why aren't we explaining why we're getting down here one reason and I've tried to say that of course if you want to punish corporate capitalism then you don't want to celebrate its health-giving effects but besides that if we spend all our time trying to figure out a non-existent answer to a non-existent question why are we getting sicker then we're in danger of giving up the very mechanisms that have helped us achieve the unparalleled progress indeed the only country in the world of which it has been alleged that health rates are going down is the Soviet Union and I say alleged because the data that Nick Epistat and others have seems to be pretty good but of course it comes second and third hand since they're not allowed to go and verify it here so we ask ourselves a question that's a little bit different here I've tried to suggest to you that if we follow the trends of policy and say you can't do a new thing unless you can prove it does no harm that we're going to get sicker and I've given you a hospital example another obvious example is inoculations if you give an inoculation for a pertussin which is whooping cough some bad things are going to happen to people which we wouldn't like if it was us brain damage death may be paralysis tiny tiny proportion suppose you don't give it then you get several hundred thousand kids get very very sick so what should you do well in a way what is happening here is that all of us are engaged in a great lottery in which we're putting our kids at a tiny tiny risk in order that everybody else will have a much better chance but according to the tort laws now the laws of personal injury huge settlements come somebody gets sick too the manufacturer can get no credit for all the lives and sicknesses saved only damage the other side the tort law itself has become a form of economic redistribution there are all these liberal drudges and scribblers and they're saying damn we cannot get economic redistribution to the congress this year what are we going to do well every chance we get we're going to hit the manufacturer even economic savants because they're ignorant of cultural relations that is that they're actually people who have ways of life opposed to capitalism and who would like to use any mechanism they can they don't understand what's happening so they say look you know when you leave an economist alone with a politician you're very your chances of living it's very dangerous so they get in there and they say well Mr. Economist who is it that has the best chance of internalizing the cost of minimizing cost to society as a whole to say to a manufacturer let's put the cost in the manufacturer that's right if everybody was agreed this was a capitalist country we ought to minimize cost to society that would be super but since other people are trying to undermine capitalism what happens is something like this you have some idiot speaker here and he takes that chair and he puts this speaker stand on that chair and on that speaker stand he puts a ball and on that ball puts a tricycle and your bloody idiot speaker crimes up on that tricycle and would you believe it he falls off and breaks his neck and what does he do? he sues for a multi-million dollar settlement because the maker of the tricycle should have reasonably foreseen what use would be made of it oh no nothing like that will ever happen you don't know the wonderful cases we have of the lady who sued for getting some venereal disease not because she didn't invite the fellow home to sleep with her but because she didn't invite him to do that or the even wonderful cases for instance I try out cases on people and I found one that seems to come home to people and somebody because I've asked people what would you say wasn't somebody's fault you say well if you went to the ball game you got hit by a foul ball wrong now they get sued all the time do carry your gloves with you and don't be a social nuisance at the baseball park you see the point here that as we say that we're doing good for people's lives by preventing new things we are actually harming them because we are not permitting opportunity benefits to go on a very reasonable hypothesis would be something like this consider two classes of events one we would call low probability, high dangerous event say a explosion very bad explosion at a nuclear power plant or something like happened in India the Bhopal plant vis-a-vis the high probability you'll get a little bit of benefit out of something that is by and large more people's health will be improved than will be diminished by something a hypothesis that would put the facts is that if we suffer some low probability, highly dangerous episodes they will be overwhelmed by a very large number of small incremental good things why do I like this hypothesis because it actually explains what happens that is if it were true and we'll come to that a bit in a moment here if it actually were true then we would understand why over a longer period of time even though life is full of disasters and many bad things happen health improves year by year decade by decade and so amazingly enough does safety including all the major accidents suppose for example you do and finding no literature and you do very simple comparisons you take a look at natural disasters and you take a look at them that occur in rich countries rich industrial ones polluted, disgusting with every you know chemicals entering the body just yesterday I heard when they can't show you see that big amounts of chemicals will do anything they have to show then that very trace element you know will make you crazy what's wrong with this well Bruce Aims a very distinguished biochemist at our university has shown now that in your everyday food uncontaminated by industry or capitalism plucked from nature itself the amount of carcinogenic material by weight is over 10,000 times whatever gets into the food chain from pesticide that comes from industry I didn't say a hundred and I didn't say a thousand it's 10,000 to one plus what this means these idiot doctors not what's standing the body is likely to manufacture these chemicals that they are claiming are killing us that we are much much much much 10,000 times more likely to get them from our peanut butter, our bread and all the rest of it then we are from industry now of course if you are standing in front of a pipe that's putting out a noxious fume I don't recommend it for you occupational hazards are different there you could get thousands and thousands of times more and you would want indeed to be cautious and careful here but for the rest most of these fears are unfound look supposing you drink a glass needless I say Berkeley water good left liberal water that has chlorine in it does it not chlorine forms chloroform chloroform is a weak carcinogen aims has a piece coming out then you go you've heard right silicon valley water wells are contaminated and you read always in the paper contaminated with what how much that doesn't interest anybody or they have a term that they used to use for coming to sympathizers linked to something has been linked to well you see water wells doesn't have chlorine right and it does have other forms of dirt carcinogenic material but the question is how much isn't it well it turns out for all but two of the wells the amount of carcinogenic material is less than a glass of Berkeley water why because Berkeley water has more and that has less but from reading your papers and what these people say you get no idea of this at all so you've learned a little bit that you should ask for comparative data compared to what well we are trying to figure out how to make ourselves safer and healthier and we've got the idea that if we continue with trial and error one thing that's going to help us is the steady improvement in past hazards is likely to overwhelm the few major episodes that we have but wait a minute again this is gross and inexcusable if you know something bad is coming and you know it's not going to harm people how can you let it occur I mean how unfeeling can another human being be let me set up the formula for you if indeed you are part of a government and you do know with some probability that bad things are coming for example you could take public health measures against them and I am all in favor that why their cost per person is extremely low the good they do is very large the cost-benefit ratio is immensely favorable this of course is not what we object to remember if you follow the rule of trial without error you do know cost-benefit analysis at all you only count the costs the damage to people you are not allowed to say that ad is in some way overwhelmed by this if you do that what you are doing is condemning larger numbers of unknown people in society to much worse health indeed one of the great advantages of capitalism over mercantilism or socialism is that individuals are not allowed to say not me that is they are not allowed to set up special protective arrangements for themselves so that all the dangers have to go over as against the other people in society back again you are a good government and you are well disposed and you are not dumber than the people here and you say okay we know about some bad things so I give you rules if you know with reasonable probabilities that they are occurring and you know what to do about them so that the cure is not worse than the disease and a point I will get to in a moment the cost is not prohibitive come back to that then you should do it that is to say if indeed you do know enough about the probability of occurrence and what to do about it at a reasonable cost you should why do I set up the formula in this way because that formula is a guarantee against something else have you ever known a nervous person have you ever been one yourself you know people are always full of foreboding like Joe Bifstich in the little with that little cloud over his head and you read stuff bad news is coming government can't be like Joe Bifstich government acts let's set this up in a conceptual way let's say there are two ways to deal with dangers one is the mode of anticipation planning let's head it off before it occurs the other is the mode of resilience a term I've taken from an ecologist named Hollings bounce back the ability to learn from failure and damage how to do better what the ecological literature tells us about animals and insects is that's non-human plants those that do brilliantly in a particular strand ecological strand don't do so well when environmental conditions change but those that don't do so well in one strand often do well over a variety of strands in the same way then if you're resilient you take some punishment but you learn to bounce back if you're anticipatory you attempt to ward off the danger right like the good person should you see it coming you stop that speeding car nobody gets run over if you don't guess correctly or predict what's happening you are going to spend an enormous amount of society's resources trying to ward off dangers that will in fact never occur when we talk about these bad dangers we're thinking of things that have actually occurred to us I think it's fair to say from quite exhaustive investigation on my part and your anybody here is welcome to write to me at the political science department at UC Berkeley and tell me if you have other instances here but basically I would say that nobody has ever predicted anything important not the airplane not the computer not the chip not feminism nothing that impacts it on my life false positives mean immense expenditure many many possible bad things could happen you have to guess right it's a fair bit of the time if not what you know what an immune reaction is like I suppose some of you do we have cases examples in the literature of the human body of individuals who are not killed because the organism that invades them is lethal but because this invasion sets off every defense mechanism they've got so they kind of die by resource exhaustion that's exactly what would happen if we had a prophylactic government that is to say if we had a preventative government a government that tried to avoid our dangers again if we reasonably know what's coming like you we could have a cholera or whooping cough epidemic and so on it's a damn good idea to do this even if some people get hurt provided only one thing that we don't choose the people who get hurt it would not be right for a moral human being certainly not for a libertarian to say that you or I would be singled out but if we are taking our chances with the rest of society it is part of the essential beneficial effects of self-regulatory systems that people are not allowed to shield themselves through protective arrangements which can only be enforced by the government here again one of the good things about capitalism is we all have to take our chances if not not there's a salk and sabine vaccine one is live one is dead if you take one some nobody gets hurt but nobody else gets immunity if you take the other some people get hurt but for reasons we don't have to go into practically everybody there are some freeloaders in our society the bastards won't take the vaccine so that's a harder case isn't it because if we go with the vaccine that confirms immunity on practically everyone we cover the freeloaders that's a much harder case to cover but for most cases what we are talking about here is not singling out somebody for punishment but saying that the vaccine has some untold consequences if not now then later that we can't possibly predict if we're going to say that anybody who gets damaged by something can sue or better still stop it we will stop all progress and we will make health worse indeed the one hit theory of carcinogenesis the idea that a single molecule can cause cancer is the leading edge of our pro-safety people when you hear that nothing can do any damage that means that there is no dose response effect one molecule is enough to kill in that case anybody by claiming damage can stop anything ice minus anything if you are interested in a technologically vibrant society if you are interested in a society of change how could you manage this my last point here what is it then that is in fact responsible for the increase in health and safety that we have had what we want is a social mechanism that will interrogate the unknown that is to say that will warn us in advance of many of the bad things that will happen and if they occur will enable us to respond quickly it turns out that that is what markets do if you think of large numbers of individuals and groups engaging in small transactions they are crisscrossing society they won't guess anything if a media collides with the earth I don't suppose capitalism is going to help us but for most things they interrogate large portions of the environment at very low cost if they fail they lose they don't lose here what's back of this the best I have been able to come up with is this theory here that the health and safety of society depend on the accumulation of generalizable universal resources by that I mean wealth money information all those resources from which you can make other things not things like you stockpile and you can only good for themselves but things that are converted into other things when we have age for example the best thing we have going for us is that we have created in the last quarter century before a vibrant biotechnology industry capable of very quickly figuring out what this is about and doing whatever human life will you know and knowledge will allow if this is correct then we have a different equation it is not as in cost benefit analyses health versus wealth I never do that I never let anybody put me in that position I care about money and you care about life bad for me I do only health health analyses here if it is true and I have immense evidence that health and wealth are intimately related every single ethnic group in the world those in it wealthier are healthier between countries wealthier are healthier here a 1% dip in the unemployment rate has vast effects on health compared to practically anything you can do there is no doubt about this if wealth and health are functions of each other what sense does it make to go through all this regulation which essentially says let's make ourselves poorer in a good moral cause so we can be healthier if in fact you would believe the words of the great Sophie Tucker the red heart mama of my youth who said I've been rich and I've been poor and believe me richer is better so I have argued that richer is safer here what we have is the worst of all the worlds here in that we are being urged to deny our liberties to give other people rationales for intervention into the most intimate recesses of our lives for what to make us healthier but if we once we start thinking about it we see that this is going to make us less free and sicker and one thing more for San Francisco people here a friend of mine who talks about these matters from biochemistry says he's going to change his name from Havinder you may know him to paid industry consultant because he's going to be where he goes nobody wants to know his argument they say who paid you as if getting paid was a crime I got news for people who are concerned about the sufferers from AIDS can we have two kinds of scientists here if who pays you determines your science and not the competitive disciplines of science we don't say science is good because Joe scientist is a terrific guy we say it because there's a competitive in science here if we say that industry you can't trust anybody from industry because somebody pays you why won't they say the same thing about the medical doctors the only thing stopping a vast age panic in this country listen just observe you know what our Berkeley liberals are like oh yes I love everybody and soon as they shake hands they run into the bathroom to wash is this theory no as John Wayne would say that's not a brag that's fact because I've seen it any number of times now if we we can respect four communities of scholars and scientists which is all we got to go on here on the grounds that they are perverted by corporate capitalism which causes our cancers do we think we'll segregate it to one area of our life I think not perhaps you have some questions please we're done in polio in spring of 54 we're implemented through the volunteers in Marshall Dimes it wouldn't be possible now because of the regulations yes but at that time there weren't he didn't have to ask for any federal permission to do anything and the program of mass inoculation of social successful on the other hand 22 years later the federal government tried to implement a mass inoculation program against swine flu and was roundly cast together for it I'm wondering as the government now in almost a no win situation yes is the government in a no win situation beaten if it engages in mass inoculations and beaten if not who here has not seen last week or 10 days articles in the newspaper like this you ask economy down the tubes because of praise deficit right curse those who wish to drill our nation's bottom so to speak off the California coast right the whole point of this is to say capitalism is terrible it makes you sick and you're not even making money and I agree that government is in hard times here but there is a center point here it is quite you could have mentioned other cases for example where individuals without proper warning and consent have been subject to very bad tests for them right so nobody wants to deny that there is private or public abuse of course there is what we have to ask is what the effects of regulations will be over large numbers of cases here and I agree with the implications of your mark on the polio testing here that it is wrong to say that we can live in a world without any abuse whatsoever the result of that is the rule of trial without error right if we can't make any mistake then the only thing and you're whatever you do is damned then government say well I didn't do anything but that is of course inaction is also doing something here so this is an area that people need to know more about one of its grave difficulties is you have to become expert on too many arcane things and somebody has to be about polio and about things you never heard of how many here know that the Chernobyl accident is a direct result of testing safety systems that's pretty good most in America you see what a small proportion that is do not know this if you went to your car and you put our gasoline bomb under it and lit it you couldn't have done more to cause an accident than they did and I have a long screen on the inspection of nuclear plants to show you that in testing for safety wreaks tremendous damage now sometimes you should test for safety but in many times you shouldn't because experience and theory will tell you that if you keep testing certain devices they degrade and the chance of accident increases all this should tell you is that simply reaching for safety, plucking the right fruit is not what's necessary we need as much theory and verifications we can get we need a lot of trial and error it's not straight forward it's crooked and crabbed and indirect I think that would be a good description of market relations, wouldn't it if we knew the theories of how markets worked, why would we need them why couldn't we put them on our high speed machines and direct society that way the whole point is that we can't estimate the 19th and 900th order effects the same is true of safety with things I mean that just as you mentioned the case of women doing about venereal disease it seems to be a real problem especially with AIDS if you know that you have an infectious disease and then you knowingly that is another matter that I think you're liable just as I am not to the person who is to rule on moral questions for all of humanity I could give an answer I'm prepared to give a very difficult question that you raised here there are two ways of looking at it here in the 19th century we had such strong we had overly strong protection of market relations let me give if you went into a factory and you got cut in half I don't believe either half was going to collect against the boss I mean there was just so stringent and I've done one of the chapters in the book I have called Surging for Safety is on the tort law if we have you know if you and I were in a terrible accident God forbid and one of us got badly hurt and we would get X thousands from the other insurance company if one of us is a city you get 4X if you're a corporation you get 6 to 8X well there are several ways of doing this one way talked about in congress is to cut down the possible size of awards and to have it more like workman's compensation this may be what we have to do I am not too happy with it why because lots of people who shouldn't get do get and some who need a lot and who get a lot don't get it at all but no law can be written against interpretation if you were to read the cases that we have cited and the thousands more that we can't they're so egregious that as people are reaching you know they're all rosy birds they're reaching out of left field to say that corporate capitalism is guilty as charged and the whole purpose is to get deep pockets right to take from those who have more and give to those who have less regardless what I would like is to if I could figure out how to do it is to reinstate the idea of negligence which is what your original question suggested if a reasonable person could say with reasonable foresight that you knew about this then you ought to pay all you got or as much as it takes or your insurance or whatever that's what I would like my problem is I am not sure how to write this into law, why? I've looked now at internal briefs written by insurance lawyers and they say something like this we can't figure out any language to put in the contract that will mean what it says why? because then you see a very creative judge following Justice Brennan's idea Justice Brennan interprets the Supreme Court the way the State Department lawyers interpret the ABM treaty that is to say he'll take a look at it and he says well in the light of modern conditions we know who should pay so let's figure out how to make him do it that is it'll say well liability stops after seven years and then you will claim the clause in the judge's opinion and will say but justice requires and then you're finished so in a way I know what I would like but it's not just a matter of writing a law it's a question of whether you can get juries and judges to go back to what I thought was a medium position here that is to assess negligence in a reasonable way tort law is good for libertarians and good for markets because instead of having to guess what will do damage you can only bring suit after damage has been done so I'm all for it but a reading of what has happened is enough to make anybody wonder so in a way we know I think I know from a market point of view what the right and I think from a humane point of view what the right doctrine should be whether there is any way of writing them in is another matter who has had multiple sexual partners without appropriate precautions etc and you have intercourse with somebody else who then gets a communicable sexual disease aren't you negligent by the very nature of this and shouldn't you be subject to suit by either tort law or negligence law since I want to make sure everybody knows we're talking about hypothetical cases here I won't be able to call home aren't there any precedents for this oh yes I think that in my common law understanding of this matter for instance will you distinguish the person who does this and doesn't realize that he's doing something awful and the person who does this knowing he or she has a communicable disease and still insists upon it for instance such a person will say well only a certain proportion you know get it and so on my own preference would be which is different in saying what the law says right that this should be negligence and torture the same that this should be actionable okay but I know yes but strict liability doesn't really apply here because it means that even though you made your product well it could be used in a way that was detrimental to somebody in a way that they're not abusing it and therefore you ought to pay probably but that's a borderline case here again the problem is really not with borderline cases we could resolve the question you are talking about here what I know is that the past law will give multiple precedents if you were talking about a negligence standard then I believe that person is as negligent as can be a about themselves right and the first person to protect is one substance without that you can't protect others and then negligent towards others but what the law would do with it would take a braver person than I am more concerned here not with these individual matters though I understand they're a burning interest to people who are affected by them but to the warp and wolf of daily life I cannot think of any other area of endeavor in which people as they say from the best of motives encourage a larger number of detailed interventions into people's life than those who are now the champions of health and safety thank you very much for most of it