AN ALTERNATIVE APPROACH
Performance-based Regulation: Enterprise Responsibility for Reducing Death, Injury, and
Disease Caused by Consumer Products, Stephen D. Sugarman, Question, p. 319
1. What is performance-based regulation? What alternatives exist? What advantages do
you see to all of them?
Performance-based regulation is where a performance goal is set by legislative or administrative
Command-and-control schemes are one alternative mentioned. In these schemes, regulators order
changes such as marketing techniques to reduce demand of dangerous products
For part three, answers will vary by student.
CHAPTER PROBLEMS
1. Monster Beverages
(a) What kind of lawsuit would that be? What will the family need to prove in order to
win?
It would be a negligence suit. The family will need to prove that Monster breached its duty
(b) What defenses will Monster Beverage raise?
Monster Beverage will raise the defense that the beverages are safe for normal consumption
(c) Research: What happened in that lawsuit?
The lawsuit was sent to mediation. There are several articles available on line about this case
(d) Research: Find out the legal status of alcoholic energy drinks in your homes state.
2. Assume you are a safety engineer at Ford, consulted as to the wisdom of adding $11 to
the cost of manufacturing the Pinto. What recommendation would you make? Can you
make use of ethical theory to argue in defense of it? Against it?
Answers will vary. It is easy in hindsight to say that the change should have been made.
3. AOL
(a) Apply the economic loss theory to the scenario.
Because the claims against AOL are solely economic in nature, the economic loss theory
pushes those claims in to the realm of contract law. Whether or not the plaintiffs have any
(b) Is there anything AOL could have done to better protect itself in the process of
making an insurance deal?
Answers will vary by student. AOL should have negotiated with the insurance company for
a policy that covers this type of harm. AOL is in the business of creating and testing software
(c) What could it have done in the process of making/selling its software?
Answers will vary by student but could include more testing of the software and clearer
(d) Research: What happened in the America Online, Inc. v. St. Paul Mercury Insurance
Co. case?
The lawsuit referenced in the text was before the court on AOL’s motion for summary
judgment, alleging that the facts of the case are not in dispute and based solely on the pleadings
4. DDT/Malaria Dilemma. Use ethical theory to respond.
Utilitarian analysis would consider the overall consequences to the various stakeholders
(developing world people at risk of malaria, the health care systems, citizenry in developing
Ask students to form argument using the above theories. This would also be a good opportunity
5. Do an ethical analysis of the Tylenol/Motrin scenario. Can you articulate a legal claim
against J&J?
Answers will vary by student. Looking at the situation through multiple ethical lenses, the
company should evaluate Free Market ethics, Utilitarianism, Deontological theories (categorical
Legal claims against Johnson and Johnson could include advertising claims, negligence and
fraud.
More information about a class action lawsuit filed in Illinois is found here:
6. Biotech medicines
Stakeholders would include ill patients, doctors, insurance companies, Medicare and Medicaid,
An obvious argument in favor of the legislation is the lower cost which may make the medicines
7. The Secretary of Health and blocked FDA approval.
(a) What problems do you see with the executive branch asserting its power in that
way?
(b) Research: The courts have been involved in the ongoing controversy over this “day
after” contraception. Find out the current status of Plan B One-Step.
8. Find out how the thimersol controversy has been handled by the United Nations. How
has the United States responded?
Thimersol remains in vaccines. There are several web articles available regarding the
controversy and the United States response including:
9. Research: Find out which retailers are selling Andrew & Williamson’s strawberries and
whether other companies have signed on to the program. How would you evaluate its
success?
The Andrew & Williamson’s webpage of stores and restaurants that carry their products:
More information about the Initiative may be found here:
CHAPTER PROJECT
Legislative Activism regarding product safety
Research:
If possible, assign roles early enough to give students time to do some library or online research
to support their positions. Most advocacy groups and organizations have websites that will give
students a good feel for their likely position on legislation of this type, and the Internet is a
goldmine of information. Students seem to enjoy the research, which gives them confidence and
improves the quality of the role-play.
Teamwork:
We have found that the hearing works best if students collaborate in preparing their arguments,
which means assigning two or even three students to represent each perspective. They can share
the work and make the most of one another’s strong points in this way; a student who is
comfortable thinking on her feet in a live debate may not be the one who has found the best
nuggets in the library or online.