NanoManagement: Synergizing regulation with common law in light of nanotechnology

Nanotechnology Law and Business

Volumn 7, Issue 2, 2010, Pages 165-178

  Belinsky, Zachary ^a  

^a UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

BREAST IMPLANTS; COMMON LAW; NANOTECHNOLOGY PRODUCTS; PRODUCTS LIABILITIES; TORT CLAIMS;

NANOTECHNOLOGY; SALES;

PRODUCT LIABILITY;

EID: 77956724373     PISSN: 15462080     EISSN: 15462080     Source Type: Journal    
DOI: None     Document Type: Article

References (70)

1. See generally Joseph Kennedy, Nanotechnology: The Future is Coming Sooner than You Think, in 1 YEARBOOK OF NANOTECHNOLOGY IN SOCIETY 1-21 (Erik Fisher et al. eds., 2008).
2. E.g see Andrew D. Maynard, Nanotechnology: The Next Big Thing or Much Ado about Nothing, 51(1) Annals Occupational Hygiene 1,4-5 (2007).
3. See generally Id.
4. Id.
5. See generally PRICIPLES FOR THE OVERSIGHT OF NANOTECHNOLOGIES AND NANOMATERIALS (2007), http://nanoaction.org/nanoaction/doc/nano-02-18-08. pdf(last visited Mar. 19,2010).
6. RESTATEMENT (THIRD) OF TORTS § 2(b) (1998).
7. RESTATEMENT (THIRD) OF TORTS § 2(c) (1998).
8. Thomas Connor, Comment and Casenote: Genetically Modified Torts: Enlisting the Tort System to Regulate Agricultural Contamination by Biotech Crops, 75 U. CIN. L. REV. 1187,1204 (2007).
9. See generally GEORGIA MILLER & RYE SENJEN, FRIENDS OF THE EARTH, OUT OF THE LABORATORY AND ON TO OUR PLATES: NANOTECHNOLOGY IN FOOD AND AGRICULTURE (2008) [hereinafter FRIENDS].
10. Christopher H. Schroeder, Lost in Translation: What Environmental Regulation Does That Tort Cannot Duplicate, 41 Washburn L.J. 583,605 (2002).
11. Id.
12. Id.
13. Kennedy, supra note 1, at 3.
14. Id.
15. FRIENDS, supra note 9, at 22.
16. Id. at 23.
17. Id. at 24.
18. Id.
19. Id. at 27.
20. THE ROYAL SOCIETY & THE ACADEMY OF ENGINEERING, NANOSCIENCE AND NANOTECHNOLOGIES: OPPORTUNITIES AND UNRTAINTICEES 37 (2004).
21. FRIENDS, supra note 9, at 30.
22. Id.
23. E.g. Moon-Hee Andersson, Nano Nordic Technology News, 2003-Top Ten Nanotech Projects, http://www.nanonordic.com/extra/news/?module-instance= 2&id=258 (last visited Mar. 19, 2010).
24. Antimicrobial Claims Prompt Lawsuit by EPA Under Pesticide Law, BEYOND PESTICIDES DAILY NEWS BLOG, Sept. 2009, 24, http://www.beyondpesticides.org/ dailynewsblog/?p=2458.
25. th Cong. (2009) (proposing sweeping nanotechnology specific reform).
26. FRIENDS, supra note 9, at 49.
27. RESTATEMENT (THIRD) OF TORTS § 2(c) (1998).
28. RESTATEMENT (THIRD) OF TORTS § 2(a) (1998); Manufacturing defect, the third category refers to instances where a single item from an assembly line is poorly made. Id. at § 2. This would not have any special relevance to nano. Although presumably a nanocosmetic could accidentally contain a more dangerous substance put into the container and make the manufacturer responsible. However, such mistakes can haen just esily to mappseasinufacturers of any kind.
29. Connor, supra note 8, at 1204.
30. See generally John Endicott, Interaction Between Regulatory Law and Tort Law in Controlling Toxic Chemical Exposure, 47 SMU L. REV. 501 (1994).
31. Id. at 522 (quoting STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE 28 (1993)).
32. RESTATEMENT (THIRD) OF TORTS § 6(c) (1998) ("A prescription drug or medical device is not reasonably safe due to defective design if the foreseeable risks of harm posed by the drug or medical device are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health-care providers, knowing of such foreseeable risks and therapeutic benefits, would not prescribe the drug or medical device for any class of patients.").
33. RESTATEMENT (THIRD) OF TORTS § 2(b) (1998).
34. Id.
35. A quintessential example cited espoused by law school professors is the "trampoline house." Popular thirty years ago now they are virtually non-existent. This means that the dangers or risks caused by trampoline houses, such as kids accidentally jumping into each other and getting hurt, outweighed the benefit they brought to society.
36. This does not, in principle, apply to prescription drugs unless there is no benefit from the drug.
37. Richard A. Lovett, "Nanofoods" Offer Big Flavor, Low Fat, Stealth Vitamins, NATIONAL GEOGRAPHIC NEWS, Feb. 23, 2009, http://news. nationalgeographic.com/news/2009/02/090223-nanofoods.html (last visited Mar. 26, 2010).
38. Id.
39. It seems the likelihood of salt being a design defect is farfetched. It is just a simple example meant to illtrate the doctrine.
40. There are exceptions to this doctrine for items ingrained into society, such as the motorcycle. Although, arably motles cause more guorcycharm than good they would not be subject to such liability.
41. Connor, supra note 8, at 1204.
42. Id.
43. RESTATEMENT (SECOND) OF TORTS § 821B(2)(b) (1979).
44. Id.
45. Keith N. Hylton, When Should We Prefer Tort Law to Environmental Regulation?, 41 WASHBURN L.J. 515, 5205 (2002).
46. Id.
47. Id.
48. Also, why is 100nm, such a round number optimal? If we had 8 fingers would it be 64?
49. FRIENDS, supra note 9, at 49.
50. Hylton, supra note 45, at 521.
51. It is important to note that a regulation can be both under and over inclusive at the same time. For example, one could argue that a recent EPA fine on North Face for anti-bacterial claims was under inclusive because it did not regulate the actual use of the nano-product underlying the claim. At the same time it was over inclusive because it found fault with a claim that was perhaps true but did not go through the proper regulatory channels.
52. Tom Baker, Liability Insurance as Tort Regulation: Six Ways that Liability Insurance Shapes Tort Law in Action, 12 CONN. INS. L.J. 1,3 (2005).
53. Asbestosis often can take 25 years to manifest.
54. Wendy Wagner, When All Else Fails: Regulating Risky Products Through Tort Litigation, 95 GEO. L.J. 693, 696 (2007).
55. Id. at 697.
56. Id. at 714.
57. Id.
58. Id. at 715.
59. Id. at 728.
60. Id.
61. Edward T. Schroeder, Note, A Tort by Any Other Name? In Search of a Distinction Between Regulation Thughro Litigation and Conventional Tort Law, 83 TEX. L. REV. 897,901 (2005).
62. To better understand the assumption of risk defense think of a skier injured on a double black diamond run. The skier would not be able to sue the owner of the ski resort because he chose to take an obvious risk, which is a necessary part of the sport.
63. Richard Wilson, Proposed Asbestos Ban, Mesothelioma Data, Statistics & Information, available at http://www.mesothelioma-data.com/stats/asbestos/ united-states/proposed-ban.php (last visited April 30, 2010).
64. Nathan Koppel, New Fight Erupts Over Pursuit of Asbestos Claims, WALL ST. J., Dec. 3, 2009, at A19, available at http://online.wsj.com/article/ SB125980846932174095.html (last visited Mar. 29, 2010).
65. See The Employers' Liability (Compulsory Insurance) Act 1969, 1969, c. 57 (Eng.) (employers liability compulsory insurance required employers to "insure against their liability for personal injury to their employees"); U.K. Consumer Protection Act 1987, 1987, c. 43 (Eng.) (U.K. businesses are liable for damage that a product supplied may cause and must have insurance in case of claims made by the public, including tort claims).
66. Green Paper on Liability for Defective Products, at 26, COM (1999) 396 final (July 28, 1999) (compulsory manufacturers insurance was among the potential revisions considered for Directive 85/374/EEC).
67. An appropriate analogy would be unfair bank fees. Often people feel they have been charged bank fees unfairly or without warning. Although an individual may sue for $15 and win it would probably not be worth his or her time. One may argue the aggregate of these bank fees have serious detrimental effects on those struggling with money. Thus, if determined to be in society's best interest regulators could ban or strictly lim bank fees becauitse the court system is not an adequate remedy.
68. Richard Merrill, FDA Regulations as Tort Standards, 12 J.L. & Pol'y 549, 557 (2004).
69. Gerrit de Geest & Giuseppe Dari-Mattacci, Soft Regulators, Tough Judges, 15 SUP. CT. ECON. REV. 119, 137 (2007).
70. Baker, supra note 52, at 3.