Agriculture Reference
In-Depth Information
thereby prevent many harms that would not have been prevented by
regulation, because it creates fears about liability and additional adverse
impacts that rational managers and directors of companies should take
into consideration in their decision making. This “deterrent function” of
the common law can thereby fill regulatory gaps and essentially create a
precautionary principle in the governance of technological risks.
However, this optimistic appraisal is moderated by other considera-
tions. Common law is unreliable and unpredictable because of the many
variables involved, such as the attitude and values of the presiding judge,
the effectiveness of the attorneys representing the parties, the attitudes
and capabilities of the judge and jury in dealing with complex factual
issues, laws, and regulations that in some instances explicitly or implicitly
preempt common law remedies, and the basic issue of having a plaintiff
willing and able to bear the emotional and economic costs of bringing
and sustaining a lawsuit against a well-endowed corporate defendant. As
for its deterrent effect, obviously much will depend on the willingness of
corporate officials to heed the prospect of loss and the need for improv-
ing safety despite the economic gain from continuing to do business as
usual.
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GMLiability Scenarios
The potential of the common law for promoting the safety of GM agricul-
ture and foods by imposing economic losses and deterring unsafe prac-
tices and products can be estimated by evaluating three prototypical sce-
narios. In these scenarios, the vulnerability of GM seed producers, crop
growers, and the makers and sellers of GM food products is considered.
The first scenario involves the making and selling of a GM food prod-
uct in compliance with the regulations and exemptions discussed ear-
lier, but that is later shown to cause harm to consumer health. Although
no such incident has been proven in court, its possible occurrence is a
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Id
. Also see M. Baram, et al., Alternatives to Regulation (Lexington Books, 1982).
