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‹rms (or worse, from ‹rm to ‹rm). Thus, few managers who invest in longterm research and development projects will be around to reap any bene‹ts from such investments.114 The professional interests of corporate managers are probably even more focused on the short term when long-term exposure is only a possibility— as is always the case with a potential legal liability—and not a certainty.115 Clayton P. Gillete and James E. Krier suggest that for the corporate manager , “certain and demonstrable gains are likely to enhance her standing in the ‹rm more than would the tenuous avoidance of losses.”116 Further, the tort of public nuisance poses unique challenges to the notion that legal liability for the conduct of manufacturers many decades ago affects the conduct of the defendant-manufacturers and other manufacturers operating today. Many courts have held that provided that a harmful condition is a “continuing” one, as would be the case if the presence of lead pigment on the walls of residential units was found to constitute a public nuisance, the statute of limitations for a public nuisance claim never runs, and the claim is never time-barred.117 As such, legitimizing the use of public nuisance claims against product manufacturers likely extends the period of time between the manufacture and distribution of a product and any liability judgment resulting from a latent disease or other harm caused by the product. Despite the arguably rational and pro‹t-maximizing impact of discounting liability judgments a generation or more in the future, it is to be hoped that the corporate decision maker is motivated by other factors, such as a desire to maintain the long-term reputation of his employer or even the altruistic impulse to avoid knowing that one’s actions or inactions may result in other human beings suffering from cancer or other latent diseases. Yet principles of pro‹t maximization arguably produce a corporate culture that sometimes renders corporate managers blind to any consequences materializing in the distant future, including legal liabilities resulting from latent diseases. In short, even if the rational, wealth-maximizing decision of a corporate entity would be to eliminate or reduce currently pro‹table activities that may result in latent disease known to occur only decades after exposure , it is unlikely that corporate managers will make that decision, because of the disparity between their own career interests and the long-term ‹nancial interests of their employers. It is improbable that the imposition of hundreds of millions of dollars in liability under a public nuisance theory, even thirty years down the road, would have no impact on corporations as they evaluate the possible toxic ef162 suing the tobacco and lead pigment industries fects of such products, whether such products should be distributed, and how they should be distributed. The present analysis suggests, however, that legislatively or administratively imposed regulation should play a larger role in regulating products that cause latent diseases than in other areas of liability. Regulation of the processes of product safety testing, unlike liability for the results of inadequate testing or research, occurs before or simultaneously with the distribution of the product, not decades later. Thus, the delay between the manufacturer’s conduct and the manifestation of the latent disease, facilitated by the failure of public nuisance to time-bar product claims, does not preclude loss minimization that could be achieved through the regulatory processes of legislatures and administrative agencies. Who Is in the Best Position to Prevent Public Health Problems? If the goal of expanding the boundaries of public nuisance liability is to minimize the incidence of product-caused public health problems, courts also should ask which party is in the best position to prevent such problems. To use Calabresi ’s terminology, who is the “cheapest cost avoider”?118 Liberal judges often re›exively conclude, “Manufacturers are usually the ‘cheapest costavoiders .’”119 Many product-caused harms involve causal contributions from multiple actors. Arguably, the careless driver is more morally culpable for the injuries sustained by a passenger in an automobile accident than is the automobile manufacturer who could have designed the car in a way to minimize the injuries to the occupant. Yet courts quite legitimately ‹nd that the manufacturer is in the best position to reduce the incidence of enhanced injuries over a range of cases. In other words, the manufacturer is the cheapest cost avoider. In the instance of widespread public health problems caused by product exposure, at least two factors suggest the...

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