A Liability Thought Experiment

Assigning blame isn't so simple in today's world

August 18, 2021

I think it is important to stimulate your brain with some difficult questions from time to time, and it is particularly beneficial to wrestle over questions that will help you form a better view of the world and of how things work. Quite a while ago I presented what I called the Bubble Boy Thought Experiment as an idea for people to wrestle with. Joel Salatin's latest blog post has helped me find another problem we should find an answer to.

We like to believe that whenever some sort of transaction takes place there are only two parties involved, the producer who makes the product and the consumer who buys the product. With few exceptions this is how things worked for most of human history, but readers of Salatin's book Everything I Want to Do is Illegal will recognize that this is not the case for most of us anymore, along with anyone who has bought a gun recently. These days there are at least three parties involved in every transaction, the produce who makes the product, the consumer who buys the product and the government who says that that particular producer is allowed to sell that particular product to consumers or in some cases even just that particular consumer.

As I alluded to before this reality is most apparent in the case of buying a gun in the United States where no matter where you buy a gun you will have to fill out legal paperwork and pay for a state background check which both must be processed before you can be sold a firearm. But in just about any other circumstance the government is an invisible third party to the consumer, but, as Salatin's book makes clear, the producer is constantly aware of the government looming over them. I know someone who plans to sell various products made with foods from her productive garden at farmers' markets and things like that. In the state I reside this requires a cottage food licence. With a cottage food licence she is allowed to sell things like jams and jellies, which she makes, but not pickles, which she also makes. This annoyance is just one example of the many annoyances that millions of producers around the world (without access to lobbyists) have to deal with to legally sell their products.

But then of course things get much more complicated when the products are more complex than food and guns. Things like drugs, injections and pesticides often contain dangerous chemicals which require the government to conduct tests on before the producer is allowed to sell something to a consumer. For example if a pharmaceutical company has a new drug they want to start selling they must take that drug to the government and present the data from the tests they themselves conducted which the government will analyze while also conducting their own tests and if the government determines that the drug is okay they will tell the pharmaceutical company that they will be allowed to sell that drug under a certain set of circumstances.

Joel Salatin's blog post talks about a court case where this process failed. A weed killer that a company took to the government for approval, which the government determined was safe turned out to not be safe at all. This particular weed killer (which is still being sold) gave multiple people cancer.

Now the question we must answer is who is liable for the damages that occur when this sort of thing happens? Is the consumer liable for damages upon themself when they use a dangerous product they were told was safe? Is the producer of the dangerous product liable? Or is the government who said it was okay to sell the dangerous product liable? The court case Salatin is talking about seems to partially revolve around this issue, and there are also laws which will answer this for certain types of products, but disregard all of these when engaging in this thought experiment. If you were harmed by the correct use of a product you bought are you the one who should be liable because it was you who used it? Should the producer be liable because they made a dangerous product? Or should the government because they let it all happen?