Jeff Mosenkis, illustrates an often overlooked distinction in the regulations of the U.S. Government in his article Government Safety Regulation: Kind Mother or Big Brother? The article neatly points out the dual ideological approaches taken by separate Agencies operating on the same area – consumer product safety. Mosenkis refers to them as the “Kind Mother” and “Big Brother” approaches.
First, the Food and Drug Administration (FDA) issued a rule creating standards for the labeling of sunscreen. Second, the Consumer Product Safety Commission (CPSC) is working on a prosposed rule to require SawStop technology on all table saws. While these regulations seem to accomplish the common end – increased consumer safety, there approaches could not be further apart. Moskenis likens the FDA regulation to the “Kind Mother” gently ensuring that consumers are fully aware of the product they are going to purchase and are free to make the choice. While the CPSC’s approach is compared to that of “Big Brother” possibly requiring table saw manufacturers to include the technology and removing consumers from possible danger and the freedom to choose to purchase table saws with or without the technology.
The theories in Mosenkis’ article may apply to litigation strategies. For instance, can the Government’s role as “Kind Mother” or “Big Brother” be used to aid the defense? How does each role affect defense strategies in various industries? Does a “Big Brother” Government foreclose a Reasonable Alternative Design argument? If not, should it? Let us know your thoughts.