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 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.