Posted by Eugene Volokh:
Consumer Supremacy?
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248384107
I'm writing up a pretty detailed discussion of tort law policy
arguments for my forthcoming Torts class. In particular, I want to
stress to students that they shouldn't just look at the classic
compensation and deterrence arguments, but also consider how a
proposed legal rule might affect defendants', prospective defendants',
and others' liberty, privacy, and the like. A legal rule imposing
strict liability on skydiving companies, for instance, might diminish
poorer customers' freedom to choose to skydive. Perhaps the intrusion
on freedom is justified, but it has to be recognized, and considered
in analyzing the merits of the proposed rule.
But I think there's another category of such effects beyond just
"liberty" and "privacy," which I've tentatively labeled "consumer
supremacy" -- but that's not a great label, and I'm looking for a
better one (hence the post). Here's an example, drawn from [1]an
article by Prof. Andrew McClurg.
In the article, Prof. McClurg points to a case in which the plaintiffs
were faulting the gun manufacturer Lorcin for "negligently failing to
take reasonable precautions to minimize the risk of handguns being
sold to those likely to misuse them"; and one such precaution,
suggested by one Patrick McGuire, was to distribute the following
alert to Lorcin dealers:
Important Notice to All Firearms Retailers ...
Your firm, as a gun retailer, plays an all important role in making
certain that weapons such as the Lorcin .380 are kept out of the
hands of criminals. You are in a key position to help prevent
criminal misuse of this weapon. Here are some things you can do.
1. Make certain, through a training program, that all sales
personnel are completely familiar with federal and local
regulations and procedures regarding gun purchaser applications and
registrations.
2. Instruct your sales personnel to be especially alert to, and
wary of, gun buyers who display certain behavioral characteristics
such as:
(a) Buyers who appear in unkempt clothing and have a slovenly
appearance.
(b) Buyers who appear nervous, agitated, distracted or hurried in
their purchase.
(c) Buyers who appear evasive, hesitant in responding to questions,
stand off from the sales counter and who resist eye contact with
the sales person.
(d) Purchasers who appear vague and uncertain in response to
routine questions about why they are purchasing the weapon, how
they intend to use the gun, where it will be stored, suggestions
for safe use, and similar topics.
(e) Buyers who are belligerent or aggressive in response to routine
questions about where they live, how they came to select your
store, and similar questions.
(f) Those buyers who purchase large quantities of ammunition with
their first gun purchase.
(g) Buyers who present an altered or expired drivers license or
other out of date or invalid documents.
Challenging Suspect Gun Buyers
Retail sales personnel should be trained and encouraged to politely
but candidly question suspect gun buyers, such as those exhibiting
the above characteristics, about the truthfulness of the
applicants' answers to questions on the ATF application form.
Experience shows that many persons who misstate personal
information, such as prior felony convictions, psychiatric history
and treatment, etc., will -- if challenged and confronted -- often
admit that their applications contain false information. For
example, a sales clerk, reviewing an application that may contain
false data, may properly ask:
"You realize that federal agents do check the accuracy of
information on these applications. If they find any of it to be
incorrect, you can be fined and imprisoned. Is there anything,
anything at all, that you would like to change on this application?
Or, would you like to hold this application for a while, and think
about it, before filing it and purchasing this gun?"
Challenged in the above way many -- while certainly not all --
unqualified gun buyers will either admit to a false statement that
disqualifies them as a gun buyer or will give up their attempt to
make a gun purchase.
Lorcin Engineering can assist you in training retail sales
personnel to screen out potential gun misusers. There is no perfect
system to prevent guns from falling into the hands of criminals and
other dangerous persons. But as a gun dealer you can be of
significant assistance to law enforcement agencies, and to your
community, by staying alert to these telltale signs....
My sense is that there's something troubling in the legal system's
requiring distributors, on pain of legal liability, to screen people
for wearing "unkempt clothing" or having "a slovenly appearance," or
for being "distracted or hurried," or "resist[ing] eye contact," or
being "belligerent or aggressive in response to" probing about their
addresses or motivations. Of course, a store owner is generally
entitled to impose such policies on its own. (I set aside for now the
serious risk that implementing such policies might lead to race, sex,
etc. discrimination lawsuits; that's not what I'm getting at here.)
But those policies strike me as undermining a certain expectation of
something -- again, consumer supremacy is the best term I've come up
with -- that American consumers have.
We assume that we can generally go into a store in whatever mood and
dress we might be in, and still buy the product we want. That's not
always so, for instance if the store is partly selling a pleasant
atmosphere for its customers (which is why we might accept a dress
code for a fancy restaurant but be annoyed by a dress code at
Walmart). And at some point unjustified rudeness to the store owners
can lead them to rightly kick us out. But we don't expect to be judged
for dress or attitude by the people from whom we're buying consumer
goods. Again, those people have a legal right to do it, and some might
exercise this right; still, one thing we value as consumers is that
most stores recognize this sort of consumer supremacy. If the legal
system requires stores to shift away from this model, that's a cost
that needs to be taken into account.
So my questions: (1) Is there a good name for this sort of consumer
interest -- not quite liberty and not quite privacy? (2) Is there
anything else that's useful to say about the nature of this interest,
or how much it should be weighed?
I'm not looking for a general discussion of gun manufacturer
liability. In fact, what's interesting to me about such consumer
supremacy concerns is that they would apply to similar arguments as to
any form of negligent distribution or negligent entrustment. (Imagine,
for instance, a legal liability rule that would require car rental
companies to closely investigate buyers who seem unkempt or nervous,
on the grounds that they might be smugglers or just reckless drivers,
or a legal liability rule that would require bar owners not just to
card patrons but to closely investigate those who seem to be acting
uncomfortable or who are wearing clothing supposedly associated with
under-21-year-olds.) I'm also not claiming that consumer supremacy
must trump all other concerns; perhaps some restraints on it are
permissible. I just want a good term for this concern, and any
insights you folks might pass along about it.
Notes: (1) I realize that the proposal literally seemed to focus only
on requiring Lorcin to suggest such policies to dealers, rather on
requiring Lorcin to mandate such policies, but the logic of the
proposal suggests that if failing to recommend such policies is
negligent, failing to demand them would be negligent, too. (2) I
realize that the liberty/property/whatever-it's-called concerns could
be fit within the compensation and deterrence boxes, if one tries
creatively enough, but I want to give students a broader checklist
that will lead them to policy arguments that they might otherwise
miss; and the policy arguments I have in mind aren't what one normally
thinks of when one hears "compensation" and "deterrence." (3) I
realize the particular claim that Prof. McClurg points to has now
likely been preempted by federal statute; my question isn't about
that.
References
1. http://www.saf.org/LawReviews/McClurgTortious.htm
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