Health Law and Policy Commons^™

Constructive Cigarette Regulation, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Professor W. Kip Viscusi argues for a move away from the adversarial approach to tobacco regulation, an approach that is currently embodied in class action lawsuits and the proposed broadening of FDA regulatory power over cigarettes. In this Article, he suggests that the FDA should take a constructive role in fostering technological innovations to promote cigarette safety, in much the same way that the government currently fosters safety improvements in motor vehicles and jobs. Professor Viscusi claims that the objective of government policy should be to promote informed consumer risk taking-an approach which recognizes that adult consumers have a right …

Teen Smoking Behavior And The Regulatory Environment, Joni Hersch

Vanderbilt Law School Faculty Publications

Professor Hersch argues that most state regulations aimed at fighting teen smoking have had little or no effect. She provides evidence that despite widespread age restrictions on purchasing tobacco, most teens do not consider it difficult for minors to purchase tobacco products within their community. She also presents evidence demonstrating a strong correlation between smoking rates and perceptions about the addictive nature of smoking. These findings suggest that facilitating greater awareness of the addictive power of cigarettes could be effective in curbing teen smoking. She explores the potential for parental restrictions on limiting teen smoking, but provides indications that parents …

Smoke And Mirrors: Understanding The New Scheme For Cigarette Regulation, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Not all the provisions in the proposed legislation favor the states. Others, pertaining primarily to civil liability, are favor able to the financial health of the cigarette industry.

Most important, the legislation would end all present and future actions by state attorneys general. Cigarette companies would escape the potential liability they could face because of an unfavorable ruling about which costs count or because of an unpredictable jury.

The settlement would also preclude all future "addiction" or dependence claims, all class actions, and all claims for punitive damages. Individuals, however, could still sue for past conduct, so that in the …

From Cash Crop To Cash Cow, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The 1990s have witnessed a blizzard of anti­smoking efforts. Hillary Clinton and a variety of supporters of the Clinton health care plan urged dramatically higher cigarette taxes to pay for expanded health insurance efforts. And many state and local governments have imposed smoking restrictions or have undertaken antismoking ad campaigns. Those antismoking efforts recently culminated with a pro­ posed $368.5 billion settlement to address many liability and regulatory issues. The focal point of the bargain was the settlement of a series of lawsuits filed by the states against cigarette companies to recoup smoking-related Medicaid costs. Several state attorney generals composed …

Carcinogen Regulation: Risk Characteristics And The Synthetic Risk Bias, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

In this paper, I will explore the decision to regulate natural and synthetic chemicals. To what extent are regulatory decisions driven by the severity of the risk as opposed to the character of the risk exposure? The striking result is that the risk severity plays a very small role. Instead.it is whether the chemical is synthetic or natural that is the driving force behind regulatory decisions.

Human Health Risk Assessments For Superfund, W. Kip Viscusi, James T. Hamilton

Vanderbilt Law School Faculty Publications

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is scheduled for reauthorization in the spring of 1995, and Congress must decide either to continue the Superfund program in its current form or to modify it in some manner. Congress cannot sensibly decide how to reauthorize CERCLA without understanding the program's progress toward one of its fundamental missions: the reduction of risks to human health and the environment from uncontrolled hazardous waste sites... This article is structured in six sections. Section I provides background on how risk assessment data are used at Superfund sites.Section II details the construction and organization …

Cigarette Warnings: The Perils Of The Cipollone Decision, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

In Cipollone v Liggett Group, Inc., a splintered Court concluded that cigarette smokers who are injured through their consumption of tobacco may bring some state law tort claims against the manufacturers of the cigarettes. Other claims, however, are preempted by federal legislation requiring cigarette packages and advertising to bear warning labels, the specific wording of which is dictated by statute. After a detailed examina- tion of the economics of hazard warning systems, Professor Viscusi argues that the most important economic issues in the Cipollone case were cor- rectly resolved in Justice Stevens'plurality opinion, which contained little overt economic reasoning. The …

Screening And Treatment Of Newborns, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

With the advent of new genetic technologies and the Human Genome Initiative, interest in the problems posed by genetic diagnostics in general, and by genetic screening in particular, has surfaced. Many recent works focus on the problems posed by the "new genetics" in the contexts of prenatal diagnosis, carrier detection, employment, and insurance. In the midst of all this discussion, the routine testing of newborns for genetic disorders seems relatively uncomplicated and has, in fact, become "a part of common practice and accepted public policy with little thought having been given to the implications." The relative lack of concern about …

Pricing Environmental Health Risks: Survey Assessments Of Risk-Risk And Risk-Dollar Trade Offs For Chronic Bronchitis, W. Kip Viscusi, Wesley A. Magat, Joel Huber

Vanderbilt Law School Faculty Publications

This study develops a methodology for measuring the values that individuals place on morbidity risk reductions and applies it to the measurement of the benefits from reducing the risks of contracting chronic bronchitis. The survey methodology involves the use of an iterative computer program that presents respondents with a series of pairwise comparisons which are individually designed to measure respondents' marginal rates of substitution for chronic bronchitis risk reduction. The approach is innovative in that it measures the rates of trade-offs for chronic bronchitis risk reduction in terms of the risk of an automobile accident fatality (risk-risk trade-off), as well …

Age Variations In Risk Perceptions And Smoking Decisions, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The results of a national survey of smoking risks and smoking behavior are analyzed. Smoking risk perceptions follow the expected patterns given age differences in risk information acquired and differences in information associated with smoking status. Risk perceptions are greater as one moves to younger age cohorts, where overall lung cancer risks are substantially overestimated. These risk perceptions in turn have a negative effect on smoking decisions, where younger individuals behave no differently in terms of the manner in which they incorporate risk perceptions into their smoking decisions.

Effectiveness Of The Epa's Regulatory Enforcement: The Case Of Industrial Effluent Standards, W. Kip Viscusi, Wesley A. Magat

Vanderbilt Law School Faculty Publications

The EPA water pollution regulations-the focus of this study- represent an interesting departure from past patterns of regulatory failure. First, the nature of the regulations-discharge limits-relates directly to the policy objective of controlling pollution, and there is no potential for offsetting behavioral responses. If the pollution standards are binding and enforced, they should improve water quality. Second, the enforcement effort is so extensive that enforcement should affect firms' compliance. In the pulp and paper industry, which we will analyze, the EPA averages roughly one inspection annually per major pollution source. In addition, firms are required to file monthly discharge monitoring …

Do Smokers Underestimate Risks?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This paper uses a national survey of 3,119 individuals to examine the effect of lung cancer risk perceptions on smoking activity. Both smokers and nonsmokers greatly overestimate the lung cancer risk of cigarette smoking, and the extent of the overestimation is much greater than the extent of underestimation. These risk perceptions in turn significantly reduce the probability of smoking, as suggested by an economic model of risky consumption decisions. Cigarette excise taxes in effect endow individuals with additional risk perceptions comparable to their current assessed lung cancer risks

Utility Functions That Depend On Health Status: Estimates And Economic Implications, W. Kip Viscusi, William N. Evans

Vanderbilt Law School Faculty Publications

Taylor's series and logarithmic estimates of health state-dependent utility functions both imply that job injuries reduce one's utility and marginal utility of income, thus rejecting the monetary loss equivalent formulation. Injury valuations have unitary income elasticity, and the valuation of non-incremental risk changes and effects of base risks follow economic predictions.

The Rutabaga That Ate Pittsburgh: Federal Regulation Of Free Release Biotechnology, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

When the Environmental Protection Agency (EPA) first approved a field test of a bioengineered microbe,' one EPA official remarked: "We're not expecting this to be the rutabaga that eats Pittsburgh.' 2 But regulators cannot afford to be wrong. Bioengineered microbes may serve many useful purposes, but they may also cause harm to the environment and to human health.3 Although the risks of an accident stemming from the deliberate release of bioengineered microbes into the environment may be low, the resulting damage could be substantial. This note examines the possible consequences of two recent trends in biotechnology-the development of bioengineered microbes …

Informational Regulation Of Consumer Health Risks: An Empirical Evaluation Of Hazard Warnings, W. Kip Viscusi, Wesley A. Magat, Joel Huber

Vanderbilt Law School Faculty Publications

On the basis of data from a survey of almost 400 consumers, this article assesses whether consumer behavior is responsive to information about product hazards that is provided in response to regulation. We find that the extent to which consumers take precautions is consistent with the level of risk indicated, the amount of risk information, the specific risk and precaution indicated, and the economic benefits of safety precautions. We also use the patterns of precautionary behavior to analyze the implicit value of the morbidity effects and to assess the consistency of consumer choices. Our findings support the use of product-hazard …

"New And Improved" Estimates Of Qualification Discrimination, Joni Hersch, Joe A. Stone

Vanderbilt Law School Faculty Publications

The early offer reform proposal for medical malpractice provides an option for claimants to receive prompt payment of all their net economic Losses and reasonable attorney fees. Using a Large sample of closed individual medical malpractice claims from Texas supplemented by data from Florida, this article provides an empirical assessment of the consequences of the early offer reform. Noneconomic damages make up about two-thirds of paid claim amounts. The minimum payment amount for serious injuries will affect the magnitude of insurer savings and claimant compensation. Payments to claimants will be expedited by 2 years by the early offer reform, and …

Dangerousness And Expertise, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The defendant-first approach advocated in this Article is more difficult to implement than either the current policy admitting any proffered expert testimony or the exclusionary reform advanced by many commentators. It requires some mechanism for apprising the state when the defense intends to use clinical prediction testimony. When no such intent is registered, it demands that any other clinical testimony, whether offered by the state or the defense, be carefully monitored to insure that the dangerousness issue is not raised; it may require revamping other procedures as well.2 " But the defendant-first approach also presents the factfinder with the most …

Alternative Approaches To Valuing The Health Impacts Of Accidents: Liability Law And Prospective Evaluations, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The task of valuing accidental injuries and deaths is intrinsically difficult for two reasons. First, unlike standard consumer commodities, individual health is not traded explicitly on the market. It may be traded implicitly as with wage premiums for risky jobs, but these implicit prices must be estimated statistically. The second problem is that the value one places on any economic commodity depends on the welfare one can derive from it. Since adverse health effects influence the welfare one can obtain from any given level of income, the value of one's health status depends on the context in which such values …

Health And Safety, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

My review of recent risk regulation policies necessarily starts with the new oversight group within the Office of Management and Budget (OMB), because it has been the dominant force for improvement thus far. Unfortunately, OMB's efforts have not been matched by a similar commitment at the agency level.

The Role Of Mental Health Professionals In The Criminal Process: The Case For Informed Speculation, Christopher Slobogin, Richard J. Bonnie

Vanderbilt Law School Faculty Publications

In this article we have attempted to make the case for continued participation by appropriately qualified mental health professionals in the adjudication of reconstructive subjective issues of the criminal law. In Part I, we outlined the reasons why imprecision and speculation is and must be tolerated in doctrines of exculpation and mitigation. In Part II, we developed the case for evidentiary rules which permit "informed speculation" by qualified clinical experts so as to enable defendants to explore and present subjective defenses and assist triers of fact to assess the plausibility and significance of such claims. We recognize that many mental …

Father And Mother Know Best: Defining The Liability Of Physicians For Inadequate Genetic Counseling, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

Although genetic disorders have been recognized for centuries, recent advances in the study of human genetics often permit accurate determination of the risk that parents will have genetically defective children.' When this information is available either before conception or during pregnancy, prospective parents may choose to prevent the birth of such defective children through contraception or abortion. Recently, courts have been called on to define the circumstances in which either the parents or the children should receive tort damages when parents are denied opportunities to prevent the birth of defective children because of their physicians' negligent failure to detect or …