It is no secret that I am critical of our current tort system, the expansive liability concepts which have turned what was once a very small part of civil law into a massive industry, figuring in every single decision we make, creating incredible wealth for some lawyers (and a handful of lucky clients) while hampering business and destroying all other wealth to a startling degree. ("Fictional "Rights" Versus Real Rights", "Additional Thoughts on Divorce", "In Praise of Contracts", "Utopianism and Disaster", "Life Is Not Fair - And Trying To Make It So Makes Things Worse", "In The Most Favorable Light", "Antibiotics, Automobiles and the Free Market", "The Inherent Disappointment of Authoritarianism", "Greed Versus Evil", "Government Intervention and the Purpose of Government") Nor is it a new concept that this expansive "right to sue" serves to not only destroy our economy, but also undermines our ability to make other choices in life. However, I have recently come across a perfect example of this concept in practice, and one which seems pretty approachable for most readers.

In the past, I used a number of examples to demonstrate how the "right to sue" prevented us from making choices we once could, or how it, in many different ways, limited our decisions. One notable example are the many drug trials which students and other impoverished types without marketable skills sometimes use to supplement their incomes. If you note the announcements for these studies, you will quickly notice that, except for those studies which must use women, almost all seek healthy MEN from 18 to 35, or some similar range. (The one exception being those studies seeking older patients, studies looking for individuals 50 or older almost always seek men and women.) Now, why is this? It seems like asking for men only would be just begging for a lawsuit, and they probably have been threatened with them but the truth is, those lawsuits do not compare to the risk they would run if they allowed women into the studies.

Why? Women have children, and children have a "right to sue", a right their mother cannot sign away. Now, granted, thanks to our schizophrenic legal system, you have trouble signing away even your own right to sue, as many cases invalidating waivers -- even informed waivers signed after a lengthy explanation recorded on video tape -- but in theory you can waive your own right to sue, and, for the moment, most courts still recognize such waivers in the majority of cases. But women of child bearing age are lawsuit magnets, as, whether they waive their right to sue or not, should they participate in a drug study, and subsequently have a child with even the hint of a birth defect, that child will almost certainly be able to bring a number of devastating suits against the company conducting the study.

And so, thanks tot he expansive right to sue, based on nothing more than the suspicion that something might have possibly brought about a bad result, has led to an entire sex being excluded from an activity. (Nor are such studies the only area engaged in defensive exclusion of women of child bearing age. Many risky jobs do the same, risking discrimination suits out of fear of much larger liability suits*.)

However, that example, and many others, were, unfortunately, drawn from rather unusual circumstances. And a few others were based on occurrences with which we have grown so familiar that we no longer see the absurdity of them. But a recent headache inflicted upon me by some common software pointed out a good example of how liability suits serve to do nothing but limit our decisions.

The problem which inspired this post was with my antivirus software. Now, normally, I rely upon free antivirus software, and, whatever its weaknesses, most free software is pretty user-friendly. It may not have the prettiest interface, but it usually allows a lot of configuration by the user. However, I bought a new computer a little over a year ago, and it came with a year's service from one of the commercial software providers. And the code, having been pre-installed, was so entangled in my operating system, that when the free service was due to expire, it just seemed easier to pay them to continue to provide updates than to try to uninstall everything and replace ti with free alternatives. (Not that it would have been impossible, but I was busy and at the time it seemed easier to pay rather than go through all the trouble of finding a free alternative.)

However, there is a problem with this program. Its real-time scanning has become convinced that a few pieces of legitimate software are infected. Now, I can make the program restore them, but doing so is only a temporary fix, as the next scan removes them again. I can also send them to the provider, which may include them in the next patch as "safe" code, but they also may not. So, I am left with the choice of either turning off my real time scanning (and periodic virus scans) or else doing without perfectly safe software.

There is an obvious third solution. That would be enabling a user to mark a piece of code as "safe". This would allow users to continue using code while it is being reviewed by the provider for a future patch. But, sadly, this option is not allowed.

And the reason given for this strange omission is why I wrote this post.

Clearly, I am not the first to have this problem, nor am I the only one to come up with this obvious solution, and everyone who has suffered through this annoyance has gone to the web site of this manufacturer and asked why this option is not available. And, in every case, the answer has been the same. Users can't be trusted to decide what to exclude. They may decide to exclude unsafe software, and that can't be allowed.

On some user forums, those who received this response asked the obvious question, "why not?" After all, if I am willing to assume the risk, if I think I know enough to turn off the feature for a given file, then why shouldn't I be able to? Especially when the alternative is to turn off the entire virus scan, rather than just disable it for one file?**

But that bizarre alternative explains the logic. You see, if I turn off the entire program, and then I am struck by a virus, it is clear that I am to blame. However, if I can disable the virus scan for a single file, and my computer then is infected, I can argue that the infection came from a file that was not excluded, and sue the manufacturer. Even if the manufacturer can somehow show it was a file I excluded, thanks to our strange tort laws, I might be able to argue that the ability to exclude individual files is a defect, and thus still makes the manufacturer liable. And, even if I lose, the case is such that it will make the manufacturer seem to be at fault, and tarnish their reputation. And so, from their perspective, it is better that I turn off all scanning rather than be able to deactivate it for a single file.

It reminds me of a somewhat better known liability case where an equally peculiar solution was reached. A train line knew that children often played on their bridges, and engineers were in the habit of blowing their horns when approaching brides to ensure the children got out of the way. However, the lawyers argued that this was precisely the wrong thing to do. If the engineers blew the horn it showed both that they knew the children were on the bridge and that they were in danger of being hit. And thus, by taking safety precautions, the train line was at more risk of a suit if a child was hurt or killed. In the upside down world of liability law, it was better if the train line did nothing to protect the children, as then, should the worst happen, they could argue they did not know there was any risk.

And that is another peculiar aspect of our liability system. As those closes to injuries of any type are usually those tasked with preventing them, or ameliorating the harm, the first people driven away by expansive liability seem to be those who can do the most to help, and so we are left with a system which actively discourages providing for the safety of others, lest you incur liability***. And yet, by some strange logic, this "tort revolution" was sold as a means of making us all safer. And even now, after driving obstetricians out of business in some areas, after makign sports safety equipment exorbitantly expensive, and after turning warning signs into liability magnets, it is still promoted with the same myth.

It boggles the mind.

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* This is one of the most telling signs that our legal system is broken. When a perfectly legal activity cannot be undertaken without facing one variety of lawsuit or another, the system is defective. A proper legal system should see lawsuits as rarities, not as the normal means of conducting interaction between individuals.

** It is not a tort law, but this reminds me of the situation recently where a group providing food for the homeless had to close because they did not meet all the technical requirements imposed by the health department. As a result, as one worker pointed out, the homeless, being "saved" from "unsafe" food were turning back to eating out of dumpsters. And before anyone believes the health department ensures only that food is safe, ask yourself if you can make safe food without a three chamber sink, as in my home state, your restaurant is "unsafe" if you lack such an appliance. So do not believe failing a health inspection always means you are unclean, in some cases it simply means you failed to meet some of the more arcane regulations. In fact, I would bet nearly 100% of home kitchens would fail a health department inspection, yet are used every day by people who remain quite able bodied and disease free. Just to show how crazy this can be, I worked at the race track as a bartender for a time, where we sold only bottled and canned beer along with wine, liquor and mixed drinks in plastic cups. We had no glassware at all. Yet, I had to have a three chamber sink and a bottle of sterilization tablets in case a health inspector came by, though I used the sink only to store extra bar rags and bags of ice. (As we could still smoke at the track back then, I did wash out ashtrays from time to time in the third chamber, but I admit I didn't bother with sterilization tablets.)

*** It is noteworthy that states had to pass "good samaritan" laws to protect those who tried to help strangers, lest they incur liability by doing a good deed.  Only in our age could it be considered normal for you to sue someone who tried to help you. And only our insane liability laws could make such a thing not just possible, but common enough that it brought about the creation of special laws to protect against it. There is simply no way that the majority of those offering assistance were negligent in the aid they provided, which just goes to show that we now penalize not just the negligent, but those who fall anywhere short of perfection. (And, in some cases, even those who do not fail at all.)

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POSTSCRIPT

As I have been complaining about work keeping me from posting and from replying to comments, I am happy to say that I should be finished tomorrow. Unfortunately, I still have a lot to do tomorrow, but that should wrap up my busiest period. So, if anyone is waiting for new posts, or for replies, they will be coming next week, at least as long as no one finds me more work to do.