NOT LONG AFTER its creation, the Consumer Product Safety Commission recognized power lawn mowers for the major threat they were to the limbs of those who use them, not to mention the limbs off bystanders. That was in 1973. Federal safety standards have been in the works ever since. They are now in the hands not off federal lawmakers or even federal regulators but -- who else? -- federal judges.
The judges, members of the court of appeals based in New Orleans, are in the process off deciding, among other things, whether the record the commission has compiled justifies the regulations it wants to impose. They heard arguments in the case a couple of months ago and will probably not decide it until next fall. After that, it is unlikely the matter will be carried to the Supreme Court. That means the regulations will go into effect, if they ever do, no earlier than 1981 and perhaps as late as 1983.
This Saga of the Mowers, told in considerable detail by reporter Nicholas Lemann in Saturday's edition, is typical of federal regulation. Congress passed an unspecific status delegating huge amounts of power to the CPSC. Its regulators took a discouragingly long time to get research done and to compile an exhaustive record on the dangers of mowers and what might be done to reduce these dangers. Then after the commission had finally adopted some safety requiremnts the whole matter ended up in court.
That's the last place in which the fate of the lawn mower -- and the relative safety of those who encounter it -- should be determined. Courts decide cases on questions such as sufficiency of the evidence, jurisdiction of the commission, fair hearings, burdens of proof and so forth. They are questions that have nothing to do with the real issues so far as lawn mowers are concerned: should there be federal safety standards and, if so, which ones? These are classic questions for legislators or, perhaps, for regulators. They are hardly questions to which judicial expertise provides answers.
Yet in recent decades, more and more of the regulatory process has been caught up in providing fuel for legal arguments and less and less in facing such basic, underlying questions. There are even those on Capitol Hill who want to make that process more judical in nature by increasing the scope of the review to which judges subject regulatory action.
That's the wrong direction. For one thing, an expansion of the role of judges would slow down the regulatory process and run up the bills of lawyers. For another, it would reduce even further the responsibility for particular regulations incurred by those who write them; there is still a belief in the country that if the courts rule something is legal, that something must be right.
Lawn mowers are already safer than they were a decade ago. Maybe the improved standards generated inside the industry are good enough, as the industry thinks they are -- or maybe they aren't, as the CPSC says. One of these days, the judges will pronounce on the legality of the CPSC regulation. But they will never be able to pronounce on their wisdom.