Grey areas, Flips and Statistical Injuries
Grey areas and flips–two metaphors for the problem of “line drawing” in the law, with different implications.
Legal reasoning functions by imposing categories on the world. An action is, or is not caused, by another action. It is, or is not, intentional, or negligent, or blameless. The act is, or is not, an act of a given individual or organization. But the world doesn’t come with neat boundaries, pre-existing categories or pre-cut lines. (That is, primitive Platonism is wrong: there is no essence of “chairness” that all chairs but no non-chairs necessarily share).
The grey area metaphor assumes that categorization is generally simple–most things fit into boxes, most of the time it is clear where the boundary is. But as you get near the boundary, it may be hard to decide on which side a given phenomenon rests. The image is of a line on a map drawn with a thick marker; when you get to close to the line, the map becomes unclear. (Israel and Lebanon have a border dispute that, apparently, is the result of a literally too thick line on a map of this sort). The grey area is close to the line and could be on either side, or it is an area where we need focus between the available pixels of the law, or something like that. Spring fades into summer and the precise line between them is arbitrary, but clearly March isn’t summer and July isn’t spring (except perhaps at very high elevations).
The “flip” metaphor, in contrast, assumes that sometimes there will be two radically different interpretations that can be applied to one phenomenon. The problem isn’t that one box fades into the other box or the line between them is unclear. Actually, the line between the wine glass and the profiles is quite clear. The problem is that sometimes the picture looks like a glass and sometimes it looks like profiles. See also, Dimple or Pimple Illusion.
I emphasize this metaphor in part because clients go to jail when their attorneys forget that what appears to be a grey area (when you are deciding how much you can push a given set of regulations) may suddenly become a very clear indicator of criminality (when the prosecutor is looking for patterns of misbehavior leading up to a scandal). Grey areas are almost by definition not violations of criminal law, because a grey area cannot be a place where you knew or should have known that what you are doing is wrong, but for the person seeing the wine glass, the boundary may be quite precise–just not where you expected it to be.
Our discussion of statistical torts is an example, I believe.
On one perspective, a company that decides to use a particular manufacturing process, if it is acting correctly, should test its process, consider the injuries that might result (from pollution or explosions, too hot coffee or vulnerable gas tanks) to employees, customers or neighbors, and make a reasoned conclusion that minimizes the sum of the (expected) costs of accidents plus costs of prevention. Then, if the product (including the costs of both prevention and accidents) can be made for a price that is attractive to consumers, it is socially worthwhile in the very simple and clear sense that people are willing to pay for it.
The job of tort, in this case, is simply to make sure that the company will have to pay the costs of the accidents it causes, so that it will have the information it needs to make the correct decision regarding whether to make the product in the first place, and so that it will have the correct incentives to install any cost-effective safety precautions. If the company can save money by avoiding accidents, it should do so, and if it cannot, then that is an indication that the accident is “worth it”: it is cheaper to clean up than to avoid, and the customers are willing to pay for the clean-up to have the product.
Note that on this view, the ethical, conscientious, company is the one that hires a good statistician, a good lawyer, and a good epidemiologist, and has them sit down to calculate the cost of the injuries the current design will cause, and then rejects or accepts alternative designs based on whether the changes will cost more or less than the accidents they avoid or create. Sleazy companies, in contrast, will either fudge the numbers, hide the statistics they find (as Merck is claimed to have done with Vioxx), or not bother to do a study at all.
But from another perspective, the whole thing looks quite different. When ordinary people cause accidents, we think of them as doing so either deliberately or accidentally, and if the latter, either with due care or without it. So, if I pull a chair out from under you because I think it’d be funny to see you fall down, I’ve deliberately hurt you (a battery). If I pull a chair out from under you because I was in the middle of an exciting game of “throw-the-chairs” in the next room and didn’t notice that I had changed rooms or that you were about to sit down, I’ve acted without the care that ordinary people are ordinarily expected to take, and the accident is my fault even though I didn’t mean to hurt you (negligence). If I’m moving the chair to clean under it, and you happen to chose that moment to sit down, either because you are being careless or because a loud crack of thunder startled you and you lost your balance, then I have caused the accident, but I was acting carefully and did nothing wrong.
Ordinary people don’t do cost-benefit analyses. They couldn’t for one thing, since few of us repeat our actions often enough to develop the information necessary for statistical analysis. Even if we could, it would seem fairly repulsive, I think, to decide how careful you should be or how respectful of other people by pricing their reactions: Hm, should I punch out that kid who is making so much noise in the next row? Well, he looks like he has an allowance of $1, so he might be willing to pay $1.50 not to be punched. It’s worth $3 to me to beat him up, so looks like the cost of the “accident” is less than the cost of “avoiding” it, so I should do it.
The basic point of the tort of battery is that people shouldn’t deliberately harm one another, period. If they do, they should be punished and the victim should be compensated. Moreover, if they hurt someone in cold blood, deliberately and after extensive thought and planning, that is worse than if they do it on the spur of the moment in the heat of anger. We also lose control sometimes, but someone who plots violent revenge is truly a danger to society.
Here is the flip, then, and it is not a grey area at all. When a company decides to sell coffee, knowing that it is so hot that if spilled in the right sort of sloppy way, it could burn someone to the bone, or decides to sell a car with a gas tank which will explode in a particular (unlikely) kind of accident, or sells a drug that saves millions of people from pain but in a very small number of instances gives patients heart attacks, it has made a deliberate decision to place the interests of the general population in hot coffee, cheaper cars or pain-free arthritis above the interests of the people who are going to be injured.
On the cost-benefit understanding of tort law, that is exactly what they are supposed to do: there is no way to do anything in the world without endangering someone (by getting out of bed in the morning, I make it more likely that I will trip over a wire in the classroom, and falling down, knock over a desk, which will cause a short circuit, start a fire, and burn down the law school). Here, the benefits (hot coffee, etc.) clearly outweigh the costs (as we know because it is profitable to sell the product even after paying the tort costs).
But on the deliberate wrongdoing understanding, everything the company does to ensure that its cost-benefit analysis is accurate is additional proof that the injury was known, pre-meditated and deliberate. When you sell a billion cups of coffee a year, you know that it is a near certainty that even the most unlikely accident will happen from time to time. The more careful the company was, the more it has made a conscious decision (do companies make conscious decisions??) to hurt someone, to subordinate the victims’ interests to its own interests in selling the product and its customers’ interest in buying it. Hurting other people for your own pleasure is precisely the kind of behavior both intentional tort law and, indeed, criminal law is meant to prevent.
In short, exactly the behavior that makes you an exemplary modern corporate citizen (two profiles) also makes you a wanton criminal of the worst variety (a wine glass). There is no grey area at all: the same evidence that proves you did the right thing proves you did the wrong one. The more careful you were in your pre-product planning, the more you battered the inevitable victim.
