Monday, April 14, 2008

Pre-emption, Part II

To continue the discussion from last post, let's examine the issue of FDA preemption. Rather than deal with what the law is, we'll discuss what the law should be, specifically in reference to drugs. (Drugs are a good reference point because they are probably the most difficult product to deal with in a legal sense because of their differing effects on different individuals.)

So lets throw the question out there- Should FDA approval of a drug X mean that drug manufacturer Y should be relieved of liability againast claims that drug X, as it has been approved, is a dangerous product?

Rather than getting too worked up into a libertarian froth over the existence of the FDA in the first place, lets just work with this legal puzzle assuming that we do have some sort of regulatory body that approves the use of new drugs. Given the existence of such a body, does it really make sense for decisions about a drug's safety, made by scientists and professionals, to be basically overturned by a jury decision? Personally, I'd argue no. Pharmaceutical companies literally spend billions of dollars on research and clinical trials that the FDA spends years reviewing. The FDA is supposed to be staffed with scientists and experts. On what planet would a jury of untrained lay people be better equip than government experts to make technical judgments about drug safety. For anyone who might think otherwise, I'd ask this. Which drug would you feel safer taking- the one that's FDA approved or the one that was approved by a jury in upstate New York.

This may seem like a somewhat un-libertarian position for me to take, but it's just common sense. It would take an inordinate amount of corruption and incompetence to make me feel more comfortable with a lay jury making decisions on drug safety. One fact that's become painfully obvious to me as I've gotten older is that the jury system was not designed for some of the extreme technical matters they're asked to decide in the modern world.

Libertarians tend not to like regulation because it's intrusive, excessive, and inefficient. And drug regulation is certainly all of that, but when it comes to legal decisions that need to be made about drug safety, I'd rather have those sorts of necessary decisions made by individuals who have at least some small glimmer into the subject matter. When making decisions about drug safety, the FDA examines the entire record, weighing the benefits with the potential negative side effects. Juries tend not to take such macro views, looking mostly to the injured party.

To put it most simply, I guess it comes down to this- If we're going to have a government body that decides whether or not drugs are safe for use, absent some evidence of mistake or wrong doing, why should we allow those decisions to be overturned by juries?


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