I hope the readers of Tort Deform will excuse this intermission in my series, "Big Noise in the Mitten State," on efforts to rescind absolute drug industry immunity in Michigan. This is the season of transition, a brief moment when things slow down so they can start up again (they claim the days are getting longer). It seemed the right moment to slow down myself, and to write a bit differently about the issues that concern us.
Just as I started to slow down, I also came down with a bad chest cold. So it is, in part, an enforced intermission. Still, I've been working--mainly on a course I will teach next semester called "Pills, Politics, and the Public Good: Ethical Crossroads and the Pharmaceutical Industry." The issue of our Michigan law, and "FDA preemption" more generally, occupy only a bit of the syllabus. A range of other topics—the history of the FDA, current proposals for reform, pharm industry marketing to docs, pharm industry marketing to consumers—take up the rest. Meanwhile, so much has changed since I last taught the course—only two years ago—that I am really starting over. They say the days are getting longer.
I am at that point when I know just enough to doubt much of what I know. In terms of teaching (as opposed to advocacy), that is not a bad place to be. On the one hand; on the other hand. Still, there was comfort in relative ignorance. I assume the question wouldn't have been raised about being Socrates or the satisfied pig if being the pig was entirely without merit.
In any event, I also find I am not the only one harboring uncertainty. A BusinesssWeek article from 2005 cites the AEI's Michael Greve—perhaps the last person on earth one would associate with uncertainty—as follows:
Radical reductions in corporate liability would undercut the accountability of genuinely bad actors. It wouldn't take long before the public would cry out for more regulation. This is one reason why the AEI's Greve thinks it could be foolhardy for medical-device makers to lobby for broad legal immunity for products approved by the FDA. "As soon as the agency made a mistake and 14 people died, there would be hysteria, and the whole approval process would be shut down," he predicts. "You need a sensible mix of public and private enforcement." (link)
"Holy cow," I said out loud when I read this. At least on the punchline, Greve and I agreed.
But then I read another excerpt from Greve barely six months later, quoted in Pointoflaw.com. He was referring, at the start, to CPR's President Tom McGarity on the FDA's regulatory standards. And then moved quickly to civil liability standards as well:
"What Professor McGarity thinks as insufficiently demanding standards, too many people think of as outrageously demanding. Many people think that too high standards imposed by the states hamper research and innovation."
"I just don't see how enforcement by Eliot Spitzer or trial lawyers in Beaumont , Tex., will yield better results," he added. (link)
I suppose these positions could be made to align if "a sensible mix of public and private enforcement" was qualified by the proviso, "So long as 'private enforcement' is understood to exclude any actions associated with Eliot Spitzer or trial lawyers in Beaumont, Texas." Alternatively, one could conclude that, noxious as the New Yorker and the Texans are, it is still better to suffer them than to bet the Pharm on the FDA, "outrageously demanding" as it is. Or, no doubt, there are still other dialectical syntheses that my chest cold prevents me from imagining. They say the days are getting longer.
On the one hand; on the other hand. Like Tevye, Emerson told us that consistency is, at best, only one of many virtues. With issues as complex as these—involving social scientific speculation as much as ideological principle--it is more virtuous to make room for a range of possibilities than to insist on only one. I have met Michael Greve, who is a very smart guy. I respect him, as rarely as I agree with him.
And so I drive off toward the lengthening days of the next semester. There is an Eliot Spitzer bumper sticker on my car, even though I live in Michigan. ("You can take the New Yorker out of New York,"….etc.) Nowhere on my car is there reference to anyone from Texas. I will have to handle the uncertainties as well as I can. So will my students. And so will we all.
Happy New Year.