FREEDOM, a popular song of the 1970s had it, is just another word for nothing left to lose. In their particular neck of the woods, the liability courts bid fair to transform this doggerel into legal dogma. The only freedom they left intact was the freedom not to innovate, not to buy or sell, not to provide playgrounds, public beaches, eye drugs, or police protection. And that freedom was exercised with ever more vigor.
The new tort system can pronounce only one word clearly--"no"--and it utters that word equivocally and late in the day. But the advancement of safety, like the promotion of insurance, requires knowing when and how to say yes, firmly, convincingly, and in time to make a difference. It depends not so much on blocking agreements as on encouraging agreements of the right kind. Consent is risky because action is risky. But the inability to reach any consensus and take any action, private or public, is more dangerous still. Legal paper does not save lives. Our accustomed safety comes from chemistry, medicine, engineering, technology, and services of every description, and it is progress in these areas that will make life safer still.
The just-say-no philosophy of safety regulation has become too familiar. Up to a point, it is wise and necessary as well. The consumer spurns the compact car, rejects the discount lawn mower, avoids the rural hospital, and takes specialty medical problems out of the hands of the general