Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
Kysar’s Constructivist Critique
Professor Douglas Kysar has advanced a different defense of the precautionary principle.
According to Kysar, the regulatory approaches we use are not just tools we manipulate to advance
our social values. Our approaches to risk policy constitute our values, even as they implement
them.
The precautionary principle encourages . . . conscientiousness by reminding the
political community, poised on the verge of a policy choice with potentially serious
or irreversible environmental consequences, that its actions matter, that they belong
uniquely to the community and will form a part of its narrative history and identity,
helping to underwrite its standing in the community of communities, which includes
other states, other generations, and other forms of life. Like the Hippocratic adage
for physicians, the precautionary principle reminds the cautioned agent that life is
precious, that actions are irreversible, and that responsibility is unavoidable. Such
considerations, in contrast, hold no clear or secure place within the logic of welfare
maximization, tending, as it does, to deny the political community a view from
within itself and to ask the community, in essence, to regulate from nowhere.
Douglas A. Kysar, REGULATING FROM NOWHERE, ENVIRONMENTAL LAW AND THE SEARCH FOR
OBJECTIVITY 16 (2010). Kysar’s point is that we construct ourselves in the policies we adopt. His
precautionary principle is typically raised in debates over environmental law and regulation,
which usually operate on a forward-looking basis to deal with ongoing pollution problems. Does
the precautionary principle have a place in the tort system, which ostensibly is confronting past
wrongs?
3. In Defense of Cost-Benefit Reasoning
Defenders of cost-benefit reasoning have responded to these critiques with their own counterarguments,
beginning with a response to the so-called “incommensurability problem”:
Robert H. Frank, Why is Cost-Benefit Analysis so Controversial?, 29 J. LEGAL STUD. 913, 914
(2000)
The cost-benefit principle says we should install a guardrail on a dangerous stretch
of mountain road if the dollar cost of doing so is less than the implicit dollar value
of the injuries, deaths, and property damage thus prevented. Many critics respond
that placing a dollar value on human life and suffering is morally illegitimate.
The apparent implication is that we should install the guardrail no matter how much
it costs or no matter how little it affects the risk of death and injury.
Given that we live in a world of scarcity, however, this position is difficult to defend.
After all, money spent on a guardrail could be used to purchase other things we
value, including things that enhance health and safety in other domains. Since we
have only so much to spend, why should we install a guardrail if the same money
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