1. Import share of the U.S. auto market went from 7.6 percent in 1960 to 14.66 percent in 1970 to 28.79 percent in 1980 to over 30 percent in 1990. By 1980, 79 percent of imports were from Japan. Crandall, Robert W. et al. , Regulating the Automobile (Washington, D.C., 1986), 11.Google Scholar

2. “Man of the Year: First Among Equals,” Time, 2 January 1956, 46–48.

3. Nader, Ralph, Unsafe at Any Speed (New York, 1965).Google Scholar

4. Flink, James J., The Automobile Age (Cambridge, Mass., 1988).Google Scholar

5. Between 1947 and 1961 the total traffic death rate declined from 8.8 to 5.2 fatalities per 100 million vehicle miles. But the next four years the rate rose to 5.5 fatalities per 100 million miles. The reaction in the world of politics was the NT and MVS Act of 1966; Crandall, et. al., Regulating the Automobile, 45. However, deaths per 100 million miles remained above 5.2 until 1971 when the rate began to drop steadily so that it reached 2.7 by 1983; ibid., 46.

6. Per the National Center for Health Statistics.

7. Of course, design has never been the only contributor to auto safety. For example, through the late 1960s, the driver's seat in American autos was increasingly likely to be occupied by the wild-driving youth of the baby boom generation. Doubtless, this increased the rate of automobile accidents. Thus, the death rate for white males in 1970 was greatest for those aged 15–24 years: an astronomical 75.2 per 100,000. For black males of the same age group, perhaps less likely to have access to cars, it was only slightly lower at 70.4.

8. Nader borrowed the phrase from William James's “bitch-goddess success.”

9. Some observers hold that the increasing accident and injury rate of the early 1960s, coupled with General Service Administration regulations and new state regulatory activity, caused the commencement of the modern age of auto safety regulation. Crandall et al., Regulating the Automobile, 45ff.

10. Even the death rate for the youths 15–24 years old, an age group ever prone to a fatally false belief in its own invulnerability, fell from 75.2 in 1970 to 57.0 in 1983 and stayed just above that through 1987. Indeed, for all sexes, races, and age groups the auto death rate declined between 1970 and 1987. That decline is least significant for white females.

11. “There can be little doubt that passenger cars are safer today than they were twenty years ago. Most of this improvement occurred in the 1966–74 model years, precisely the period in which federal safety regulation was applied….The total benefits from the lifesaving effects of safety regulation are substantially greater than the costs of the required safety features on passenger cars under most reasonable assumptions.” Crandall et al., Regulating the Automobile, 84. “Our estimates indicate that highway fatalities would be about 40% greater were it not for the safety features adopted since the beginning of [NHTSA]” (155). See also p. 69.

12. The theory, very much in debate, is that consumers adjust their risk according to perceptions of the dangers they face. Specifically, the more crashworthy they believe a vehicle to be, the less safely will they drive it. See, e.g., Peltzman, quoted in Crandall et al., Regulating the Automobile, 49. The authors reject the risk-compensation theory. Robertson calls it analogous to the “demon and miasma theories of infectious diseases.” Robertson, Leon S., “Automobile Safety Regulations and Death Reductions in the United States,” American Journal of Public Health 71 (August 1981): 818–20.CrossRefGoogle ScholarPubMed

13. Crandall et al., Regulating the Automobile, 156.

14. In fact, they state that fatalities per vehicle mile decreased 37 percent from 1947 to 1960. What did legal culture have to do with this development?

15. From 1966 to 1981 there were more than 3,200 separate automobile recalls. See Tobin, Richard J., “Recalls and the Remediation of Hazardous or Defective Consumer Products: The Experiences of the Consumer Products Safety Commission and the National Highway Traffic Safety Administration.” The Journal of Consumer Affairs (Winter 1982): 278.Google Scholar

16. Similarly, between 1973 and mid-1981 the CPSC monitored the recall of approximately 200 million product units—one for every American. The recall of Firestone radial tires cost $135 million, more than the company's net income for 1977.

17. , Mashaw and , Harfst do not cite United States v. General Motors Corporation, 841 F. 2d 400 (D.C. Cir. 1988) (rear-wheel lock-up), a case helpful to their overall argument.Google Scholar In this case the United States Court of Appeals for the District of Columbia, current Solicitor General Ken Starr writing for the court, held that NHTSA failed to prove the existence of a “defect” within the meaning of the Act principally because NHTSA offered “no physical or engineering evidence of failure” (841 F. 2d at 412). Evidence of consumer complaints did not suffice because the rear-wheel lock-up at issue could have been the result of “driver error, environmental factors, some combination of the two, or…other factors” (ibid.). In other words, if the design in question led to rear-wheel lock-up because drivers were not skillful enough to handle the X-cars, especially in bad weather, then nevertheless there was no defect for which the cars should be recalled. The case may mark a limit of any recall strategy: if a recall was essentially a means to change a design to help drivers handle a car better—if it forced a safer design on the manufacturer and hence the public—then it would not be approved by the court. In other words, some models of cars are riskier than others to drive, and NHTSA cannot recall even the riskiest models as long as its parts do not break.

18. Mashaw and Harfst do not use the statistics that indicated 75 percent return rates for recalls from 1966 to 1974 where the manufacturer paid for repairs, perhaps because by 1980 the average return rate had dropped to 50 percent. It may be that the widespread nature of recalls chilled consumer interest in responding. However, it seems intuitively correct that the publicity surrounding a recall and the apparent risk associated with the recall in question could drive up the return rate. See Nager, Glen D., “Auto Recalls and the Pursuit of Safety: A Commonsense Approach,” Stanford Law Review 33 (January 1981): 301, 305 n. 23.CrossRefGoogle Scholar

19. Meanwhile, as NHTSA increasingly focused on uncovering defects in automobiles, American makers fell far behind their Japanese competitors in quality comparisons. From 1974 to the present Japanese autos hSve been clearly superior to the Big Three in repair frequency. It is probably no coincidence that Japan has taken market share from Detroit through these same years. Mashaw and Harfst do not ask whether there is a connection between the NHTSA-led recall phenomenon and consumer preference for comparatively defectless Japanese autos, or whether Detroit's loss of market share has inhibited greater progress in designing and selling safer cars.

20. “Consumer Behavior and the Safety Effects of Product Safety Regulation,”Journal of Law and Economics 28 (October 1985): 527.CrossRefGoogle Scholar

21. Ibid., 551. It has been argued also that the cigarette advertising guidelines of the 1950s and 1960s have reduced the growth of the market share of filter cigarettes, which are safer than nonfiltered cigarettes. McAuliffe, Robert, “FTC and the Effectiveness of Cigarette Advertising Regulations,” Journal of Public Policy and Marketing 7 (1988): 49–64.Google Scholar

22. On the other hand, the existence of the obligation to pay workers' compensation appears to have reduced death risks in the work force by about a quarter, according to Visceus, W. Kip and Moore, Michael J., Compensation Mechanisms for Job Risks: Wages, Workers Compensation, and Product Liability (Princeton, 1990).Google Scholar

23. By contrast, the CPSC asserts that product recalls may have prevented more than one million possible injuries between 1977 and 1980 inclusive. See Tobin, “Recall,” 297.

24. Sources would include Flink, The Automobile Age; idem., The Car Culture (Cambridge, Mass., 1975)Google Scholar, and Lewis, David L. and Goldstein, Laurence, eds., The Automobile and American Culture (Ann Arbor, 1976).Google Scholar

25. The states, which are favored by the legal culture, have been up to no good, tending to emphasize criminal enforcement that promotes the view that drivers are to blame for accidents.

26. However, all Chrysler's and half of Ford's cars had driver-side air bags as of 1990. Struggle, 251.

27. Another example the authors might cite to prove their argument are the 1978 proposed regulations on increased safety in side crashes, which were not issued by NHTSA until 1990 (after an industry-government compromise) and will not begin to be phased in until 1993. As of 1990 the rule will cost manufacturers $32 per car or $320 million a year. It is estimated to prevent more than 500 deaths and 2,600 serious injuries per year, which, given current estimates of the value of human life, means that the rule is easily costeffective. However, the rule will still leave about 7,500 people killed and more than 21,000 injured annually from side-impact collisions, second only to head-on collisions as a cause of injury. The principal reason is that the rule is intended to reduce chest and hip, but not head, injuries. New York Times, 25 October 1990, A23.

28. Although the authors do not question the wisdom of air bags, they do note that there is a question whether drivers will drive more intensely (i.e., more dangerously) if air bags are in cars (219). This issue comes from the literature of the futility of governmental action, mentioned above, but Mashaw and Harfst are not deterred by it from accepting at least implicitly the premise that air bags would reduce death and serious injury. Our objection to this reasoning is not that it is wrong. (Who can be sure? Probably air bags would be a good idea.) However, it is inconsistent for Mashaw and Harfst to reject recalls as not contributing to safety based on mathematical reasoning, while not applying the same analytical rigor to their analysis of the utility of air bags.

29. The authors also propose to alter the appealability of rules so as to constrain the inhibitory effect of judicial review.

30. The “partnership” concept is why the best idea about air bags turns out to be one that was once thought to be among the worst: namely, Secretary of Transportation William Coleman's 1975 initiative to create an air bag demonstration project with manufacturers. If followed, the authors say, it would have built public awareness, eased engineering problems, and co-opted manufacturer opposition.

31. The legal culture probably should have different impacts on the regulation of different products.

32. It is worth noting that there may not be a direct and constant correlation between auto accidents and injuries. If cars become more crashworthy, then accidents will be less likely to lead to injury. Mashaw and Harfst do not discuss this possibility.

33. In fairness, it is also true that recall publicity may have inured consumers to certain risks, causing them to pay less attention to danger (some argue that this has been an effect of warning labels on cigarette packages). Or recalls may have led consumers to believe cars are safer, and therefore to drive more dangerously (the so-called lulling effect). Recalls may have made cars more costly, and thus have prompted owners to keep cars longer. Most likely, older cars are more dangerous.

34. At the beginning of the Reagan era it appeared that NHTSA stopped issuing public notices of recalls and that Ford and Chrysler did the same. Whether such practices continued through the 1980s is not discussed by Mashaw and Harfst.

35. These do appear to be questions apt for the new mathematical/economics analysis of, say, the Sante Fe Institute, in light of the interactive, adaptive, and nonlinear characteristics of the behavior at issue.

36. The authors do not discuss but presumably would be sympathetic with the view that NHTSA has in fact constrained the ability of case law to make cars safer. For example, in Chrysler Corp. v. Wolmer, 499 So. 2d 823, Sup. Ct. Fla., 1986, the court reversed a jury verdict of $3 million punitive damages in favor of Jack Wolmer and the estate of his late wife Mary, who burned to death when the 1977 Plymouth Volare in which she was riding was rear-ended and the fuel tank exploded. The appellate court held that Chrysler as a matter of law did not show a “reckless disregard for human life equivalent to manslaughter by designing and marketing the [1977] Volare”—even though alternative designs for the fuel tank were available—because Chrysler had met NHTSA standards for permissible fuel leakage when the Volare was rear-ended by an object moving at thirty miles per hour. However, the Wolmers' Volare was traveling at fifty-five mph. Absent suffering this sort of punitive damage award or repeated legal defeats on this issue, Chrysler would have little economic reason to alter the Volare's fuel tank design to protect against what happened to the Wolmers. Possibly the legal culture has not only caused NHTSA to fail, but even feasts on the agency it killed to further its change-thwarting effects.

37. The product liability share of all federal civil cases has increased from 2.58 percent to 5.92 percent. Most personal injury cases are filed in state courts, but similar statistics aggregating all such forums are not available.

38. Other effects of product liability litigation include substantially increased insurance premiums, declines in public stock market value for companies hit by serious litigation, discontinuation of product lines, decisions not to introduce certain products, cessation of product research, improved safety, and improved warnings. See Viscusi, W. Kip, “Product and Occupational Liability,” Journal of Economic Perspectives 5 (Summer 1991): 71–92.CrossRefGoogle Scholar

39. Viscusi, “Product and Occupational Liability.”

40. The typical jail inmate charged with or convicted of DUI in 1983 was a while male between twenty and forty years old. Of DUI inmates, 33 percent were unemployed and almost half had previously been sentenced to probation, jail, or prison for drunk driving. They had consumed a median of twelve bottles of beer or eight mixed drinks in the previous four hours. Only 5.3 percent of such inmates were women.

41. A parallel statistic: the rate of death by chronic liver disease and cirrhosis declined by more than one-third between 1970 and 1987.

42. Another example of the authors' incomplete history is their decision not to discuss the history of speed limits at any length, although they state that the “55-mile-an-hour speed limit may be the most effective safety regulation ever adopted.” Struggle, 214.

43. Part of the brilliance of Nader's title was its implicit assault on the auto industry's assertion that (as the gun lobby would put it for its product), cars don't kill people, people kill people. Nader's point of course was that no amount of maintenance or cautionary driving would prevent you from facing excessively high risks of injury or death when you took your car out for a spin.

44. However, Mashaw and Harfst do not discuss the thesis of their Yale Law School mentor, Guido Calabresi, in the seminal work, The Costs of Accidents: A Legal and Economic Analysis (New Haven, 1970). Put simply, according to Calabresi, the overall objective of accident law should be to minimize costs, including the costs resulting from accidents (such as the loss of the value of a human life), the costs of avoiding accidents (such as the economic impact of reducing speed limits), and the costs of reducing the severity of accidents (such as the cost of making more crashworthy vehicles). It has been argued that the congressional intent in the Motor Vehicle Safety Act, as amended, was to “reduce the sum of both the cost of accidents and the cost of preventing accidents” (Nager, “Auto Recalls and the Pursuit of Safety,” 301–328) and that the real failure of NHTSA has been its inability to make decisions with these goals in mind.

45. Japan's inroads are skimpily mentioned at p. 117, as evidence that the auto industry was “financially weakened” as of 1974.

46. See Crandall et al., Regulating the Automobile, 43, 19, 33.

47. Ibid., 40. This is not to say that safety costs are ill-advised. The costs of regulation in 1981 dollars for 10.5 million cars was between $7 and $10 billion, but the total benefits of safety regulation were greater than the costs of safety improvement (79). It is a remarkable fact, not mentioned in Struggle, that many millions of automobile purchasers have apparently willingly incurred these costs. Yet the benefits go not directly to them but to insurance companies and to the comparatively few thousands who (unknown to themselves) have been spared serious injury or death because of safety design changes.

48. As lawyers, Mashaw and Harfst of course are criticizing their own profession, which may make them both overqualified to offer their critique and overconvinced of its significance as an explanation of history.