I recently was testifying on a bill before the state legislature and was asked why the patrons of an establishment couldn’t simply use Yelp or the internet to figure out whether that establishment was in fact safe for them to patronize. I was asked why government needed to step into the fray – wouldn’t the market address these concerns?
These are important and interesting questions that deserve answers and to do so we need to think about the philosophical framework behind organized governmental regulation and reliance on the free market.
The concept of “buyer beware” is premised upon the idea that when two persons enter into an agreement, they both have enough information to evaluate the transaction. It also assumes that both parties are providing truthful information on the process. Consider the differences between the two descriptions of a car for sale that does not run: “It runs great – no problems – you’ll get 6 years of use out of it!” vs. “It doesn’t run right now – it needs a new transmission that will cost about $1,200.” Silly to make that comparison? Not really. If you view of “buyer beware” is that you cannot go back to the lying first person and demand a refund (even though they intentionally and completely lied to you), then what you are showing is the complete collapse of commerce and the ordinary transactions of life.
The same is true for patronizing a hotel, restaurant, or indeed any other business. By being open, they are representing to you that they are safe, and providing to you the product or service they claim. A restaurant is representing that it is complying with food regulations, its employees wash its hands, that persons with communicable diseases aren’t working the line. A hotel represents that they don’t have bed bugs, that the heating system doesn’t emit carbon monoxide into the room, that the sheets have been changed. Government – and the civil justice system – enforce these representations.
This is not the government being a “nanny state.” You, the consumer, cannot know what goes on in the back of a kitchen. There isn’t a person in the world who demands to inspect the line of a restaurant kitchen, or test the employees for Hepatitis C before eating. There is a total disconnect of knowledge – only the restaurant knows whether it is following food safety laws. Therefore, it is the government’s job to be sure they do so – we the consumer can’t. What we the consumer CAN do, is after there is an injury, seek redress through the courts for that injury. When something slips by – whether intentionally or negligently – we turn to the court for redress. Why? Because when there is a harm, someone must take responsibility for the harm. Our justice system is premised on the idea that the wrong-doer carries the responsibility, not the innocent injured party.
Immunizing businesses from civil justice does nothing to help the safety of the community. In fact, it does the opposite. It lets businesses commit harmful acts in secret, hurt the community, and tell them tough patooties. We can’t protect ourselves from that – only regulation and the civil justice system will let us be sure those persons are held accountable.