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shutterstock_251316592In my lifetime, I believe that the greatest symbol of American exceptionalism has been NASA, the United States space program, and the American flag that waves (in a manner of speaking) over the Sea of Tranquility on the Moon. In an age when anti-American, anti-imperialist sentiment was building steam, America may not have been universally loved, but it was universally respected. In a rickety vessel that now seems more primitive than the boats in which Columbus sailed the Atlantic, three Americans blasted off, crossed an empty void, landed on a new world and, just to show off, televised the whole thing. And the reaction of the whole world to this incredible spectacle was: “well, of course it is the Americans.”

You had to think twice before you’d mess with someone who could do that.

It boggles the mind that that first voyage was nearly a half-century ago and it is more astonishing still that, after the Apollo program, the feat has yet to be repeated.

In another small step for man yesterday, the House of Representatives passed a bill, the “Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act,” that would prolong the “learning period” for the commercial space industry and protect it from lawsuits brought for passengers injured or killed in space tourism activities.

House Majority Leader Kevin McCarthy of California, the bill’s chief sponsor, said before Thursday’s vote:

Right now, there’s a new generation of pioneers. They want to embark on the next stage of space exploration and we should not hold them back. Truth is, Washington never comes up with the next big idea. But we can support those innovators who do, and create the best environment for them to succeed.

It is telling that in the 21st century the biggest threat to courageous men piloting rockets through the atmosphere and into outer space is neither fire nor gravity, but something much more frightening: the American Association for Justice (AAJ), which has wisely changed its name from the Trial Lawyers Association of America.

Yesterday morning on NPR’s Marketplace Morning Report, a spokeswoman for AAJ argued passionately on behalf of the “right” of Americans to sue for justice. I am recapping from memory, but the essence of her argument was that federal agencies should regulate the budding space industry, that the purchase of liability insurance was just one of the costs “of doing business,” and that there was essentially no difference between flying into space and taking a commercial jet from Logan to LaGuardia. She did bristle somewhat when the host of the show suggested that part of her motivation might be, perhaps, protection of the paychecks and business opportunities of American trial lawyers.

The fact is that various activities in America permit the industries that cater to them to escape from liability that does not fall into the category of criminal negligence or fraud. When you go skydiving, for instance, (which, by the way, I highly recommend) you sign a release form that says, in essence, that you grasp that what you are about to do is highly dangerous. That doesn’t mean that you (or your bereaved ones) cannot sue in case Dollar Store Jump School forgets to put an actual parachute (rather than a bunch of old t-shirts) into the bag on your back. It just puts the bar a little higher than it would be if you were engulfed in a lithium-ion barbecue when your Tesla S crashed into a telephone pole.

It is, at first blush, strange how partisan the vote on the SPACE Act was yesterday. It used to be the case that outer space was everybody’s favorite American backyard. Even fairly recently, votes on similar bills attracted wide, bipartisan support.

But ultimately the evolution of space technology from the public to the private sector has moved the industry firmly into the Republican camp. Who, after all, is more of a one-percenter than someone paying a million bucks for a week’s trip into orbit?

In our century, the relevant captains of industry are no longer named Carnegie and Rockefeller, but rather Musk and Branson. And while those visionaries have the swagger and philanthropic touch to appeal to the public at large, they are, in the end, tainted by that filthiest of all substances: money — because the left has a pathological ignorance and fear of anything that is done for profit.

This fear of profit-making enterprises arises from a contempt for those pathetic bourgeois slobs whose lives are dedicated to making money, as opposed to the higher callings (Community organizing? Saving the planet?) for which they themselves have forsaken monetary reward. Those higher callings are rooted in liberal grandiosity — which itself is rooted in an incapacity to deal with human mortality.

But I digress.

Suffice to say that when next humans step out of their capsules and onto the Lunar surface, I hope that the captain in charge has the insight to intone:

That’s one small step for a man, one giant leap for free enterprise.

What say you Ricochetti? Got your ticket yet?

There are 21 comments.

  1. Richard Anderson Member

    And the reaction of the whole world to this incredible spectacle was: “well, of course it is the Americans.”

    My father was living in Africa at the time and that was most people’s exact reaction. Only the Americans could pull something like that off and have the savvy to put it on television.

    • #1
    • May 22, 2015, at 10:57 AM PST
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  2. Dan Hanson Thatcher

    I’d like to believe that Republicans are fully on-board with private space, but the truth is that NASA is a large employer in a number of southern states, and Republican politicians in those states are doing everything they can to protect NASA’s turf and those jobs, even if it means turning their back on the free market.

    Have a look at who is pushing for the Space Launch System, a hugely expensive rocket program that is likely to be obsolete before it ever flies, and which can’t hope to compete on cost or availability against SpaceX’s Falcon Heavy or the other heavy lifters that are in private development. What it will do, however, is put pressure on NASA to fly its missions on SLS instead of contracting them out, which will be a blow to the private space companies.

    One of the reasons SLS can’t compete is because it has been mandated to use as many shuttle parts as possible, for the sole reason of keeping open the factories making those parts. Some of those Senators even want to divert funds away from the wildly successful commercial programs to fund this white elephant.

    It’s shameful, and Republicans are just as much to blame as Democrats – or even more so.

    • #2
    • May 22, 2015, at 11:00 AM PST
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  3. Jerry Giordano (Arizona Patrio… Member

    So you think that a space tourism company that fails to exercise reasonable care to protect the lives of its customers should pay nothing if the company’s carelessness kills those customers?

    Looking at your skydiving example: What if the company includes a parachute, but fails to check the lines, so the customer falls to his death? What if the company improperly packs the parachute so that it doesn’t open at all? Do they get off the hook?

    As an additional issue: why can’t the space tourism industry handle the question as the skydiving industry (apparently) does? That is, a space tourism company could use the same type of release form as a skydiving company. This option promotes liberty of contract, by the way — leaving the company and the customer free to allocate risk between them — unlike the federal law in question, which mandates the type of one-size-fits-all “solution” that Conservatives normally oppose.

    FYI, as a policy matter, the details may vary from state to state, but the general rule is that a release is effective to eliminate liability for “ordinary” negligence but is not effective to eliminate liability for “gross” negligence. Which generally leaves people litigating anyway about whether the negligence was “gross” or not.

    We lawyers take a lot of abuse. But the principle that people (and companies) should pay for damage caused by their carelessness is a good one.

    • #3
    • May 22, 2015, at 11:51 AM PST
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  4. Stad Thatcher

    IMHO, private space enterprises will be the wave of the future – that is, until they become highly successful, then the government will step in and take over.

    I agree with the original premise of the post – the space program was the best way the U.S. showed its exceptionalism, which is precisely why Obama has reduced NASA to muslim outreach . . .

    • #4
    • May 22, 2015, at 12:09 PM PST
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  5. Michael Stopa Podcaster
    Michael Stopa Post author

    Arizona Patriot:So you think that a space tourism company that fails to exercise reasonable care to protect the lives of its customers should pay nothing if the company’s carelessness kills those customers?

    Looking at your skydiving example: What if the company includes a parachute, but fails to check the lines, so the customer falls to his death? What if the company improperly packs the parachute so that it doesn’t open at all? Do they get off the hook?

    As an additional issue: why can’t the space tourism industry handle the question as the skydiving industry (apparently) does? That is, a space tourism company could use the same type of release form as a skydiving company. This option promotes liberty of contract, by the way — leaving the company and the customer free to allocate risk between them — unlike the federal law in question, which mandates the type of one-size-fits-all “solution” that Conservatives normally oppose.

    FYI, as a policy matter, the details may vary from state to state, but the general rule is that a release is effective to eliminate liability for “ordinary” negligence but is not effective to eliminate liability for “gross” negligence. Which generally leaves people litigating anyway about whether the negligence was “gross” or not.

    We lawyers take a lot of abuse. But the principle that people (and companies) should pay for damage caused by their carelessness is a good one.

    I certainly don’t think that private space companies should be free from liability. It is hard to argue that anything here is black and white. The most stringent law will leave loopholes through which companies will escape liability and the most liberal law will still permit lawsuits if the negligence is egregious enough.

    So I think it is just a matter of degree and while I too recognize that lawyers do, sometimes, protect individual rights when large private or public entities trample on them, My sympathies are often with those who oppose the ambulance chasers and anyone (like the AAJ spokeswoman) who argues that the private space travel industry should be treated the same as the commercial airline industry is patently absurd.

    • #5
    • May 22, 2015, at 1:44 PM PST
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  6. Pilli Inactive

    Arizona Patriot:We lawyers take a lot of abuse. But the principle that people (and companies) should pay for damage caused by their carelessness is a good one.

    While I agree that an entity should be liable for gross negligence, we need only to look at the medical field to see the results of aggressive lawyers vs. medical practitioners. America went from the best medical care in the world and at affordable prices to Obama Care as a direct result of litigation and patients wanting to win a “Legal Lottery.” We have all seen dozens of TV ads from law firms telling us to call “1-800-SUE-DOCS” to get some of the millions of dollars “you deserve.” And this was good for medicine how? Same thing goes for these space pioneering companies.

    • #6
    • May 22, 2015, at 2:50 PM PST
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  7. Aaron Miller Member

    To AP’s point, doesn’t an exemption for one industry effectively validate the norm of excessive liability and frivolous lawsuits in other industries?

    This seems similar to both Republicans and Democrats using the national income tax to buy votes with tax exemptions and other tax incentives. The problem isn’t who gets the slack and who doesn’t. The problem is that politicians are meddling at all.

    • #7
    • May 22, 2015, at 3:08 PM PST
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  8. John Walker Contributor

    Here is H.R. 2262, the SPACE Act of 2015.

    This is not about exempting the commercial space flight industry from liability. Spaceflight participants will be required to sign an acknowledgement of the risks they are undertaking, precisely as participants in extreme sports or adventure tourism do today. The key provision of the bill is extending the “learning period” during which commercial space companies are allowed to operate without the kind of heavy-handed top-down regulation by the FAA which is currently applied to civil aviation. The FAA will retain the power to regulate the industry to avoid third party damages (for example, those caused by a malfunctioning vehicle crashing into somebody’s house outside the launch site).

    The reason for the learning period is simply that we don’t have sufficient experience with commercial passenger space operations—suborbital or orbital—to do the kind of detailed technical certification done for airliners. There was a similar learning period between when aircraft started carrying paying passengers and when certification was imposed (although it wasn’t called that: in that much less risk-averse age, people simply went ahead and did things without the government’s being involved).

    Imposing civil aviation-like certification at this early stage of evolution of the industry would stop innovation in its tracks and increase the cost of entry to the market to such an extent that many potential competitors would be unable to enter it.

    Besides, at this early stage, we’re talking about very pricey tickets indeed, sold to well-heeled people who are well aware of the risks. If the U.S. cuts off this home-grown innovative industry at the ankles, those customers will have no problems whatsoever buying a ticket to a spaceport in the Caribbean or Dubai rather than one in the U.S., and the companies pioneering this industry will take their jobs and technology offshore.

    • #8
    • May 22, 2015, at 4:48 PM PST
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  9. Jerry Giordano (Arizona Patrio… Member

    After 17 years as a civil litigation lawyer — on both sides — I do not believe in the “frivolous lawsuit” argument as I once did. As an example, one of my motivations in going to law school was outrage over the famous (infamous?) $1-million-plus verdict against McDonald’s over a spilled cup of hot coffee. But then I learned more about the case. Here’s what I recall.

    McDonald’s kept its coffee about 5-10 degrees (F) higher than the competition. It was that 5-10 degrees that made a difference between a minor scald and a major burn. McDonald’s did marketing studies and determined that many customers chose McD’s for breakfast because the coffee was so hot. They decided that it would be cheaper to just pay the claims of the burn victims, rather than lose the business of the customers who liked super-hot coffee.

    Now on the one hand, you might think that McD’s decision was economically efficient — the revealed preference of the super-hot-coffee drinkers was worth more than the (quite severe) burns that occasionally occur. But the jury didn’t see it that way, and I can understand their perspective. Also, I very much doubt that most people knew the real danger of a slightly hotter cup of coffee.

    • #9
    • May 22, 2015, at 5:08 PM PST
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  10. Misthiocracy grudgingly Member

    Michael Stopa: …and the American flag that waves (in a manner of speaking) over the Sea of Tranquility on the Moon…

    Actually, by now that flag’s been bleached completely white.

    So, America is waving a white flag on the moon.

    Irony?

    • #10
    • May 22, 2015, at 6:09 PM PST
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  11. Misthiocracy grudgingly Member

    Richard Anderson:My father was living in Africa at the time and that was most people’s exact reaction. Only the Americans could pull something like that off and have the savvy to put it on television.

    Good point. The other space-faring country at the time would have kept the mission top secret.

    • #11
    • May 22, 2015, at 6:11 PM PST
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  12. 9thDistrictNeighbor Member

    I had the great good fortune to meet James Lovell. I blubbered like a fool.

    I remember the fear when MLK was shot, remembered running to my room to pray when RFK was shot, but I profoudly recall every moment of watching Neil Armstrong set foot on the moon. Would that that achievement were not the pinnacle of American exceptionalism.

    Our son’s middle name is Neil. Enough said.

    • #12
    • May 22, 2015, at 6:59 PM PST
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  13. Trinity Waters Inactive

    Arizona Patriot:After 17 years as a civil litigation lawyer — on both sides — I do not believe in the “frivolous lawsuit” argument as I once did. As an example, one of my motivations in going to law school was outrage over the famous (infamous?) $1-million-plus verdict against McDonald’s over a spilled cup of hot coffee. But then I learned more about the case. Here’s what I recall.

    McDonald’s kept its coffee about 5-10 degrees (F) higher than the competition. It was that 5-10 degrees that made a difference between a minor scald and a major burn. McDonald’s did marketing studies and determined that many customers chose McD’s for breakfast because the coffee was so hot. They decided that it would be cheaper to just pay the claims of the burn victims, rather than lose the business of the customers who liked super-hot coffee.

    Now on the one hand, you might think that McD’s decision was economically efficient — the revealed preference of the super-hot-coffee drinkers was worth more than the (quite severe) burns that occasionally occur. But the jury didn’t see it that way, and I can understand their perspective. Also, I very much doubt that most people knew the real danger of a slightly hotter cup of coffee.

    Evidence of the loss and lack of personal responsibility. One gets $1M for being stupid? For not knowing that hot coffee is hot. Gimme a break.

    • #13
    • May 22, 2015, at 8:05 PM PST
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  14. aardo vozz Member

    Misthiocracy:

    Michael Stopa: …and the American flag that waves (in a manner of speaking) over the Sea of Tranquility on the Moon…

    Actually, by now that flag’s been bleached completely white.

    So, America is waving a white flag on the moon.

    Irony?

    Maybe we should return to the moon and see for ourselves. Maybe plant a few more flags…

    • #14
    • May 22, 2015, at 10:48 PM PST
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  15. bridget Inactive

    “FYI, as a policy matter, the details may vary from state to state, but the general rule is that a release is effective to eliminate liability for “ordinary” negligence but is not effective to eliminate liability for “gross” negligence. Which generally leaves people litigating anyway about whether the negligence was “gross” or not.”

    Except a private space company with deep pockets is left explaining why the widow of a man who was incinerated in a fiery explosion, blasted to smithereens, shouldn’t get a pile of money from those richy-rich businessmen. The kids who want to go to college and have to grow up without Daddy! They couldn’t even bury him in a proper funeral because his body was barbequed at high altitude!

    We know how that works out.

    • #15
    • May 23, 2015, at 6:14 AM PST
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  16. John Walker Contributor

    bridget:Except a private space company with deep pockets is left explaining why the widow of a man who was incinerated in a fiery explosion, blasted to smithereens, shouldn’t get a pile of money from those richy-rich businessmen.The kids who want to go to college and have to grow up without Daddy! They couldn’t even bury him in a proper funeral because his body was barbequed at high altitude!

    We know how that works out.

    I’m not sure this needs to be the case if the legal structure is worked out carefully. According to AdventureStats.com, between 1922 and 2006 (data for later years are not available on their site) 10094 people attempted to reach the summit of Mount Everest and 207 died in the attempt, for a fatality rate of 2.05%. This is comparable to the probability of dying on a Space Shuttle mission, which had 14 fatalities for a total of 600 seats flown (note that since numerous people flew on multiple missions, the fatality rate per person who flew on the shuttle was higher); the fatality probability per seat is the probability that a given person, flying on a given mission, would have of dying.

    If commercial space ventures have a fatality rate anything remotely approaching that of Everest climbers or Space Shuttle crew, their ventures will be financially disastrous even if they were immune from liability lawsuits. Why? Because almost every plausible cause of death among passengers would also involve loss of the vehicle, and operating a vehicle which is lost at a rate comparable to the Shuttle (around 1.5% loss of vehicle per launch) would be financially ruinous to any private venture.

    I am confident those financing commercial space ventures have thoroughly explored how they can protect themselves against liability suits just as companies providing expeditions to climb Everest do. But in any case their designs will, necessarily, have to be enormously less likely to kill the customers than Everest expeditions.

    • #16
    • May 23, 2015, at 10:21 AM PST
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  17. Joseph Stanko Member

    Arizona Patriot:After 17 years as a civil litigation lawyer — on both sides — I do not believe in the “frivolous lawsuit” argument as I once did. As an example, one of my motivations in going to law school was outrage over the famous (infamous?) $1-million-plus verdict against McDonald’s over a spilled cup of hot coffee. But then I learned more about the case.

    Sounds like the pod people lawyers have an effective indoctrination process and you have been fully assimilated…

    • #17
    • May 23, 2015, at 12:50 PM PST
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  18. dnewlander Member

    Joseph Stanko:

    Arizona Patriot:After 17 years as a civil litigation lawyer — on both sides — I do not believe in the “frivolous lawsuit” argument as I once did. As an example, one of my motivations in going to law school was outrage over the famous (infamous?) $1-million-plus verdict against McDonald’s over a spilled cup of hot coffee. But then I learned more about the case.

    Sounds like the pod people lawyers have an effective indoctrination process and you have been fully assimilated…

    This is completely off-topic, and I apologize, but since this incident happened in my hometown, I must respond.

    The jurors meant to send McDonald’s a message, that treating people’s injuries as a dollars-and-cents metric was not acceptable. So they deliberately priced the award ($12 million) at two orders of magnitude above the value McD’s lawyers and insurance company felt was “acceptable”. (Said value came out during the trial.)

    The message was sent.

    And then the judge adjusted the award down to $400,000, which is all the woman suing got (and probably 80% of that went to her lawyers.

    I don’t think that was an unreasonable outcome, actually.

    • #18
    • May 23, 2015, at 6:44 PM PST
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  19. Sisyphus Member

    Misthiocracy:

    Michael Stopa: …and the American flag that waves (in a manner of speaking) over the Sea of Tranquility on the Moon…

    Actually, by now that flag’s been bleached completely white.

    So, America is waving a white flag on the moon.

    Irony?

    Wow! And under the hard radiation those lander stages and moon buggies have mutated into Transformers(TM)! This is America! We don’t need to go to space anymore, we’ve been doing that on entertainment centers for over a decade! Did you hear about the virtual reality headset porn features? We ain’t going nowhere.

    • #19
    • May 23, 2015, at 8:17 PM PST
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  20. bridget Inactive

    John Walker:

    I’m not sure this needs to be the case if the legal structure is worked out carefully. According to AdventureStats.com, between 1922 and 2006 (data for later years are not available on their site) 10094 people attempted to reach the summit of Mount Everest and 207 died in the attempt, for a fatality rate of 2.05%. This is comparable to the probability of dying on a Space Shuttle mission [….]

    Except that
    (a) people who die on Everest usually do so as a result of exposure, storms, avalanches, or lack of oxygen; people who die on space shuttles do so as a result of things more directly attributable to the negligence of the space company; and
    (b) Everest companies can base themselves out of a country that isn’t America, which lends itself to a whole different layer of legal wrangling.

    I’m entirely unclear as to why you used Everest expeditions as a baseline comparison, when it seems as if the relevant legal issues are quite different. I can explain to a lay jury why death by exposure isn’t the fault of the expedition company; what I can’t do is to explain to a lay jury why that massive KABOOM! wasn’t the result of the negligence of the people who made and operated the spacecraft.

    • #20
    • May 26, 2015, at 9:16 AM PST
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  21. Dan Hanson Thatcher

    A better comparison would be the very successfull experimental aircraft program, which allows you to build and fly your own aircraft, and even carry passengers. The regulatory requirements are minimal, and there are restrictions around commercial use and disclosure of the experimental nature of the aircraft, but that program has been working very well for decades. There’s no reason a spaceflight version of that cannot suffice for a long time.

    • #21
    • May 27, 2015, at 1:16 PM PST
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