From: GBurch1@aol.com
Date: Wed Dec 20 2000 - 07:20:48 MST
In a message dated 12/14/00 10:28:36 AM Central Standard Time,
asa@nada.kth.se writes:
> The problem isn't that we require people to demonstrate that their
> products are safe before they are released widely, the problem is that
> risk aversiveness combined with technocratic governments can be a
> serious and dangerous brake. I think we can avoid getting future PCB
> and mercury disasters without having to rely on heavyhanded
> interventions and fearful pessimism.
>
> The trick is to make it uneconomical to produce anything that may have
> very bad long term effects, for example by having to pay a
> compensation. The producer would be motivated to make the risk smaller
> than the potential profit. Then we might need to think about some fine
> tuning so that we get a good safety margin and can deal with
> short-term companies ("In today's fluid goo market, this company won't
> be around in five years - it will have become something else by
> then. So I don't have to worry about mutations in my nanites over that
> timespan.")
I love it when bright "amateurs" figure things out from first principles and
come to the same conclusion that "experts" do. In this case, Anders, you'd
done something I've seen happen a number of times since becoming involved in
the transhumanist community: You've invented the Anglo-American common law of
"products liability" and identified one of its key challenges. Here, in two
paragraphs, you've recapitulated 200 years of the development of this
jurisprudence and arrived at the frontier of a field that absorbs a legion of
good minds in economics and law.
The challenge is indeed how best to use the clear benefits of the fine-tuned
feedback of the case-by-case common law liability mechanism. The superiority
of this system to the Continental system of a-priori precise legislation and
administrative regulation is clear, since it uses an on-going process of
clarification and adjustment of standards to evolving circumstances in a way
that's more insulated from temporary political pressures than the civil law
system is. However, the one fundamental problem is that presented by the
need to tailor sanctions to harms in a way that properly compensates victims
and disciplines actors, without creating the need for such great capital
requirements that innovation is stifled. In theory, the risk-spreading
mechanism of liability insurance serves this purpose and in practice, in most
circumstances, that mechanism works. However, we see this system break down
in the face of truly catastrophic damage and insidious, long-term
environmental degradation.
The insurance industry tends to develop exclusions for perceived
"super-catastrophic" and so-called "long-tail" claims. Examples of these
phenomena in current practice is the near-universal "nuclear exclusion" and
"pollution exclusion" in standard Commercial General Liability policies
(commonly known as "CGL" insurance).
Specialty markets develop to insure such "mega-risks", covering claims in
these areas at a higher premium only for those companies that feel the need
for or are legally compelled to carry it. However, it takes time for this
over-all mechanism of general exclusion and specialty coverage to develop and
become properly applied to industries to which they are suited. Typically,
the process doesn't even start until claims for the special risk begin to
accrue and specific underwriting markets develop around them. In a world
marked by increasingly rapid development of technologies that hold the threat
of "super-hyper-mega-risk", this process of organic development may well be
too slow to accommodate the over-all level of threat to society.
The case of claims arising from nuclear accidents is an exception that may
well point the way to how the over-all process needs to evolve. The
widespread inclusion of a "nuclear exclusion" in CGL policies happened before
there were any real claims in this industrial arena. The exclusion developed
as a response to general awareness in the early 1950s to the new and uniquely
potent risk presented by nuclear technology. The same may well need to
happen in a prospective way to the generic threat posed by "replicator
technologies", i.e. nanotechnology, molecular biology and artificial
intelligence and robotics. Bill Joy may well serve the same function to the
legal and commercial system of common law liability that the vocal physicists
of the 1940s and 1950s did. Ironically, by sounding an alarm before the
threat arrives, Joy may begin the process of commercial and legal
accommodation that will make the development of the technologies he fears
commercially and legally safe and possible.
Greg Burch <GBurch1@aol.com>----<gburch@lockeliddell.com>
Attorney ::: Vice President, Extropy Institute ::: Wilderness Guide
http://users.aol.com/gburch1 -or- http://members.aol.com/gburch1
ICQ # 61112550
"We never stop investigating. We are never satisfied that we know
enough to get by. Every question we answer leads on to another
question. This has become the greatest survival trick of our species."
-- Desmond Morris
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