Thomas O. McGarity's "Freedom to Harm"

Thomas O. McGarity holds the Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law at the University of Texas at Austin School of Law. He is the author of The Preemption War: When Federal Bureaucracies Trump Local Juries and Reinventing Rationality: The Role of Regulatory Analysis in the Federal Bureaucracy.

He applied the “Page 99 Test” to his new book, Freedom to Harm: The Lasting Legacy of the Laissez Faire Revival, and reported the following:

Page 99 of Freedom to Harm is the first page in a chapter on environmental regulation. That chapter contrasts the potential of the environmental statutes enacted during the Public Interest Era (the late 1960s and early 1970s) to protect human health and the environment with the reality of the implementation of those statutes by the Environmental Protection Agency, the Corps of Engineers, the Office of Surface Mining, and the Minerals and Management Service (the agency responsible for the regulatory failure that led to the Deepwater Horizon disaster).

The book argues that these regulatory failures and those of many other federal agencies was the result of a 35-year campaign by the American business community and its allies in conservative think tanks and the media to roll back federal regulation and the civil justice system to a late nineteenth century laissez faire benchmark.

Six similarly organized chapters document the impact of the resulting laissez faire revival on the agencies responsible for worker safety, drug and device safety, food safety, transportation safety, financial protection, and consumer protection and on the state courts that are responsible for administering the nation’s civil justice system.

Each of these chapters also details the adverse consequences of the three assaults that the business community and its allies launched against federal regulatory programs and the common law system of civil justice. The result was a “confluence of crises” during the last half of the first decade of this century that had the potential to inspire legislation bringing about fundamental changes in the incentives motivating American companies.

Instead of enacting fundamental changes, however, Congress and the Obama Administration put into place “patch and repair” fixes designed to address the narrow problems that caused the particular crises.

We are now in the midst of a fourth assault on the governmental institutions that were designed to protect vulnerable workers, consumers and neighbors from irresponsible companies and to hold them accountable when they behave irresponsibly. In anticipation of the next confluence of crises, I offer suggestions for more comprehensive governmental protections for consumers, workers, and the environment.

Learn more about Freedom to Harm at the Yale University Press website.

The Page 99 Test: Bending Science: How Special Interests Corrupt Public Health Research by Thomas O. McGarity & Wendy E. Wagner.

--Marshal Zeringue