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The Ford Pinto Case and the Development of Auto
Safety Regulations, 1893-1978
Matthew T. Lee*
Department of Sodology and Cdrainal Justi•e
University of Delavaare
In an influential 1977 article in Mother Jones magazine, journalist Ma•k
Dowie accused Ford Motor Company executives of callously deciding to
produce and continuing to market the Pinto (which he labeled a "firetrap")
even after company crash tests showed that its gas tank would mptu•e in rea•-
end collisions at relatively low speeds [Dowie, 1977]. This reprehensible
decision, according to Dowie's interpretation, derived from a cost/benefit
analysis which purportedly demonstrated that settling the few inevitable
lawsuits filed by burn victims or thek families would cost less than the eleven
dollars per car needed to fix the defective tanks [Green, 1997, p. 130]. Dowie,
along with well-known consumer advocate Ralph Nader, held a press confer-
ence in Washington, D.C. on August 10, 1977, to draw national attention to the
case. One day later, the National Highway Transportation Safety Admin-
istration (NHTSA) began its own investigation of the Pinto gas tank [Cullen,
Maakestad, and Carender, 1987].
Lee Strickland was the NHTSA engineer assigned the task of
determimng if the Pinto gas tank met the criteria of a recallable safety defect
[Stricldand, 1996]. The NHTSA investigation did not occur in a social vacuum.
Strickland and his staff were cha•ged with evaluating the Pinto in the midst of
national publicity that had already labeled its gas tank "defective" and accused
the federal government (and NHTSA) of buckling to pressure from lobbyists
for the auto industry [Dowie, 1977]. Consumers also wrote letters to NHTSA
demanding that it take action against Ford after Dowie's article was published
[NHTSA, 1978]. However, according to Strickland, NHTSA's evaluation
revealed that the Pinto had a "fire threshold" (i.e. the speed at which a collision
is likely to result in a fire) in rea•-end collisions of between 30 and 35 miles per
hour. Since the federal standard on fuel tank integrity (FMVSS 301, effective
start•g with 1977 model year cars) required that cars withstand only a 30 mile-
per-hour rear impact, NHTSA would have to take extra-ordinary steps in order
to force a recall of the Pinto [U.S. Department of Transportation, 1988].
' I would like to thank Eric Rise, M. David Ermann, and Gary Webb for their helpful
comments on an earlier version of this draft.
BUSINESS AND ECONOMIC HISTORY, Volume Twenty-seven, no. 2, Winter 1998.
Copyright ¸1998 by the Business History Conference. ISSN 0894-6825.
390
THE FORD PINTO AND AUTO SAFETY REGULATIONS / 391
There was, and still is, disagreement within the federal government as to
whether the law grants NHTSA the authority to hold cars with potential safety
problems to a higher standard than the federal minimum. Based on all the
evidence (and Dowie's article), Strickland's work group decided that Pinto was
"unsafe" even though it met the minimum standard. The decision was then
made to increase the speed of the crash tests to at least 35 miles per hour -
beyond the Pinto's "fire threshold" (and beyond the federal minimum) - so
that fuel-tank integrity would be compromised and sufficient leakage would
occur to justify the application of the label "safety defect." To accomplish this
goal, NHTSA selected a large and particularly rigid car as the "bullet car" (the
moving vehicle in the collision) for the Pinto crash test, rather than the moving
barrier that was normally used [U.S. DOT, 1988]. Both the Pinto and the bullet
car gas tanks were ffiled with gas, rather than the non-flammable fluid normally
used. The nose of the bullet car was weighted down so that it would slide under
the Pinto upon impact and maximize the chance of contact with the gas tank.
The bullet cax's headlights were also turned on to provide a ready source of
ignition. All of these steps, Strickland felt, could be justified on grounds that
they approximated "real-world" worst-case circumstances, although most other
cars were not subject to these test conditions. For NHTSA, the test was an
unqualified success; the Pinto burst into flames upon impact. In the summer of
1978, NHTSA concluded that the Pinto gas tank represented a safety defect,
and Ford agreed to "voluntarily" recall the 1971-1976 Pintos, even though they
were built before the federal standard took effect [Strickland, 1996; Cullen,
Maakestad, and Cavender, 1987, p. 165; NHTSA, 1978].
A few months prior to the recall, a civil jury in California awarded a
record $126 million (later reduced by a judge to $6.6 million) to a plaintiff who
had been badly burned in a Pinto. A few months after the recall, Ford was
indicted (but found "not guilty") for reckless homicide in an Indiana court after
three teenage girls burned to death in a Pinto after it was hit from behind.
Authorities on the Pinto case have noted that if the Pintos had been built even
a decade earlier, from 1961 to 1966 for example, neither the criminal trial, nor
the record-setting civil award would have been likely occurrences [Cullen,
Maakestad, and Carender, 1987]. In fact, prior to 1966 the federal government
did not even have the authority to recall cars; neither NHTSA, nor the larger
agency in which it was housed (the Department of Transportation) yet existed
[U.S. DOT, 1985]. In this paper, I attempt to make sense of Ford's use of
cost/benefit analysis and NHTSA's highly-discretionary action in the Pinto
case by placing these actions in the context of the social history of auto safety
regulation.
Manufacturing Concerns and Auto Safety in Three Historical Periods
Satiny Regulation and the Auto Industry From the Invention of the Car to the 1920s
By the time the first automobile was built in 1893, the federal govem-
ment had taken the initial steps in regulating American industry [Eastman,
392 / MATFHEW T. LEE
1984, p. ix]. Both the Interstate Commerce Act (1887) and the Sherman
Anhtmst Act (1890) had been passed, although neither dealt specifically with
the automobile, much less auto safety [Cullen, Maakestad, and Carender, 1987].
Nevertheless, both acts granted the federal government some degree of regula-
tory power over industry. This power would remain quite weak until the New
Deal, after which the scope of federal power would continually expand [Rabin,
1986; Hawkins and Thomas, 1984, p. 3]. Eventually, federal intervention would
extend to the auto industry, but until 1966 the industry was "almost completely
non-regulated" in the area of safety [Mashaw and Harfst, 1990, p. ix].
The automobile was inihally hailed as a giant leap forward in the safety
of transportation. The first cars were quite slow, so serious accidents were rare,
and the "horseless carriage" was not prone to the unpredictably dangerous
mood swings that plagued horse-drawn carriages. With the first auto-related
death in 1899, auto safety crihcs gradually began to dot the social landscape. As
cars became capable of greater speeds, the death toll climbed and crihcs
became more vocal [Eastman, 1984].
Many attempts at controlling the deaths and iniuries due to auto traffic
over the course of this century were doomed to failure because they conflicted
with the "deeply held sodal values" about the automobile that quickly
developed in American society [Mashaw and Harfst, 1990, p. ix]. The car was,
and still is, viewed as a means to increase the personal freedom and mobility of
a highly mobile populahon. The failure of one early attempt aimed at reducing
auto deaths that threatened these values is illustrative. At the turn of the
century, a safety advocate proposed that all "automobiles be preceded on the
roadways by a person on foot bearing a flag by day and a lantern by night"
[Mashaw and Harfst, 1990, p. 30]. This proposal certainly would have
eliminated most traffic fatalires, but it conflicted with the fundamental purpose
(personal mobility) of the automobile.
The chief manufacturing concerns at this time were also at odds with
the safety critic's agenda. The two primary concerns of the industry were the
development of better methods of mass production and advancing automotive
technology. Forcing manufacturers to systematically design into cars increas-
ingly higher levels of safety would no doubt have impeded progress in this area.
The motoring public seemed to be satisfied with the level of safety present in
cars in this era, while manufacturers reacted primarily to the demand that they
build cars more efficiently and cheaply. Both the industry and the public, with
the excephon of a few safety crihcs, agreed that auto safety was the responsi-
bility of the driver. Thus, the safety of car design was relegated to secondary
importance, where it would remain for the next sixty years [Gusfield, 1981].
Satiny Regulation and the Auto Industry From the 1920s to 1966
As the mass carnage on American highways became more apparent over
the years, the industry was forced to take a more proactive role in maintaining
"hegemony over the design of its products" and to stave off government
regulation [Nader, 1972, p. 332]. By the 1920s, even the conservative President
THE FORD PINTO AND AUTO SAFETY REGULATIONS / 393
Herbert Hoover fek that the federal government should play a role in
preventing auto deaths, although for Hoover the proper role was to
"encourage" the states to act, not to impose a strong federal presence on the
industry [Eastman, 1984, p. 125]. In general, federal intervention during this
period dealt with economic concerns, rather than safety [Rabin, 1986].
During these years, manufacturers had two related concerns: styling and
the annual model change. Once the innovation of the techniques of mass
production hit a plateau, and the auto market began to stabilize as oligopolistic
practices predominated, the industry focused its energy on creating demand for
its products. Before the 1920s, the remark attributed to Henry Ford that
"consumers could have any color vehicle they wanted, as long as it was black"
expressed a marketing philosophy appropriate for that time; the main problem
confronting the industry was keeping up with demand [Mashaw and Harfst,
1990, p. 62]. After the 1920s, manufacturers had to create demand in order to
consistently increase sales. Scientific and rational planning, largely absent from
the industry's efforts in building safety into cars, became the hallmark of
industry styling campaigns. The latest psychological and marketing techniques
were employed in creating the demand for increasingly gaudy (and dangerous)
car designs. Although industry representatives were fond of explaining their
preoccupation with style, often at the expense of safety, in terms of consumer
demand, there is no question that they also did everything they could to keep
the balance between style and safety tipped heavily toward style [Nader, 1972;
Eastman, 1984; Mashaw and Harfst, 1990]. For example, Ford's chief stylist in
the 1950's defended hazardous tail fins and other dangerous, but functionally
useless, cosmetic innovations by claiming, "The American public is to blame. If
they want it, who are we not to let them have it?" [Eastman, 1984, p. 29].
One of the most significant results of the emphasis on styling as the
selling point of cars was the annual model change. Institutionalized by the late
1920's, the annual model change provided a justification for "planned
obsolescence" - purposely designing cars so they would not last more than a few
years. According to one auto maker, this functioned to "transform a durable
good into a consumable, thus permitting greater production" [Eastman, 1984,
p. 25]. The annual model change, coordinated with manipulative advertising
campaigns, created the psychological need to stay fashionable through car
ownership, in addition to the consumer's very real need for an operational car.
Buying a new car solved both these problems. In addition to stimulating
demand for new cars, planned obsolescence allowed automakers to use cheaper
materials in the construction of cars, thus lowering the costs of production. A
former General Motors board chairman summed up the long-standing
philosophy of the industry by stating, "Planned obsolescence, in my opinion, is
another word for progress" [U.S. Congress, 1972, p. 50]. There was little
discussion, however, of the safety consequences of using cheap materials.
394 / MATTHEW T. LEE
Satiny Regulation and the Auto Industry from ! 966 to the Pinto Recall
By the time the National Traffic and Motor Vehicle Safety Act (1966)
was passed, a number of important changes in American society had taken
place. A "broadbased rise in affluence" among the population after World
War II, moved American society towards a "general expectation of justice"
[Friedman, 1994, p. 43]. Part of this expectation is a sense of entitlement
concerning safe products. Various social movements (e.g., the Civil Rights
movement) created an atmosphere conducive to federal intervention into
previously untegulated arenas, and the increased involvement of experts in
government since the New Deal provided the bureaucratic structures and
personnel to produce and enforce these regulations [Rabin, 1986; Auerbach,
1976]. In this general environment, previously ignored claims about auto safety
received greater attention.
Auto safety legislation was also parfly the result of the publication of
Ralph Nader's book, Unsafi at Any Speed, which acted as a catalyst for turning
the auto safety movement into a legislative force [Nader, 1972]. The "need for
legislation" written into the Act was that "senseless bloodshed" resulted from a
lack of federal auto safety standards [U.S. DOT, 1985, pp. 103-3]. The Senate
Commerce Committee, which drafted the legislation, argued that the auto
safety establishment had paid too much attention to the "nut behind the
wheel" and not enough to the "second collision" [U.S. DOT, 1985, p. 11]. In
other words, further reductions in auto deaths from campaigns aimed at
changing the behavior of the driver were unlikely. Given that accidents were
inevitable, then, safety efforts should focus on car design - especially
crashworthiness. For example, if the dashboard was designed to cushion the
impact of the "second collision," rather than decapitate the driver because of
sharp, unforgiving overhangs, then fatalities would be reduced. The industry
had the technology to implement these safety features, but failed to do so.
Therefore government intervention was required. The Committee could not
have stated Nader's argument more concisely.
This marked the beginning of auto industry concem with
crashworthiness [Mashaw and Harfst, 1990]. The manufacturers' initial safety
campaigns were quite modest, however, and minimum government standards
often became industry maximums [Lee and Ermann, 1997].
Influences and Constraints in the Social Construction of Auto Safety
Regulations
The Auto Indust•y• Hegeraonic Controlof the Probkra of Auto SaJb•y
Although the auto industry did litde to encourage public discussion of
auto safety issues, it was instrumental in framing this debate. In Joseph
Gusfield's terms, the industry "owned" the power to define problem of auto
safety and fixed political responsibility for deaths on driver behavior and road
construction, rather than car design [Gusfield, 1981, p.10]. Since the industry
was the primary sponsor of auto safety research, its systematic support of safety
THE FORD PINTO AND AUTO SAFETY REGULATIONS / 395
advocates with "approriate" views, and its lack of support for dissenting views
were the primary means by which it maintained hegemony. A wide variety of
views on auto safety were present at the turn of the century (many focused on
car design), but the industry's actions over the course of the century effectively
marginalized safety critics concerned with vehicle design [Eastman, 1984;
Mashaw and Harfst, 1990; Nader, 1972]. As a result, most government
initiatives for the first seventy years of the automobile's existence were directed
at industry-approved targets. As an example of the federal government's
priorities, as shaped over the years by the industry-dominated "traffic safety
establishment," a 1965 Senate bill allocated federal funds to be used as follows:
$320 million for highway-beaufification, $5 million to study ways to dispose of
scrapped cars, and a paltry $500,000 for a Commerce Department study of
highway safety. No money was allocated for the study of safer vehicle design
[Nader, 1972, p. 294].
The Probkra of Causation
The key to the industry's hegemonic domination was the "problem of
causation," the common-sense assumptions about causal relationships which
"undergirds a society's social relations and institutions" [McEvoy, 1995,
pp. 621-51]. Although there had been sustained criticism since the turn of the
century of the view that auto deaths are caused exclusively by unsafe drivers
and roads, the industry's support of the traffic safety establishment was
effective in reinforcing certain common-sense ideas about traffic safety and
suppressing others. The core idea that the industry sought to promote was that
during "normal operation" vehicles were as safe as possible [Eastman, 1984,
p. xiii]. Accidents were not part of "normal operation," so the automakers
contended that they had no duty to provide occupants with crash protection.
As McEvoy notes, the problem of causation is bound to social and
historical situations. In other words, the patterns of causal attributions are
shaped by the social circumstances in which they are located. A "culture of low
expectations" concerning auto safety was cultivated by the industry [Friedman,
1994, p. 57]. Thus, people generally did not expect to survive serious accidents,
and except for a few safety researchers, they were not cognizant of the degree
to which crashworthiness could be designed into cars [Eastman, 1984].
But a "focusing event," a concrete example that points out the flaws in
the conventional view of a causal relationship, can bring about new patterns of
causal attributions. Nader's expos• of the Comair forced a direct confrontation
with the industty's hegemony, leading to significant federal regulation. The
symbiotic relationship between the "general expectation of justice" and the
"reduction of uncertainty" is of central importance in understanding why a
competing causal explanation gradually replaced the one propagated by the
industry [Friedman, 1994, pp. 5, 71; McEvoy, 1995, p. 626]. As uncertainties
were reduced by advances in science and technology, the general expectation of
justice became more entrenched. As people pressed their demands for "justice"
(forcing an auto maker via a civil lawsuit to pay for crash injuries, for example),
396 / MATTHEW T. LEE
"uncertainties and knpossibilities" withered away [Friedman, 1994, p. 71]. By
the time accidents were no longer popularly understood as "mysterious
dispensation[s] of Providence," the public demanded federal intervention
[McEvoy, 1995, p. 630; Nader, 1972, p. 84; Eastman, 1984].
By the 1960s, the industry's hegemony in the area of auto safety had
been weakened by a shift in the problem of causation and a growing crisis of
legitimacy in all American institutions [Cullen, Maakestad, and Cavender, 1987].
Ford president Arjay Miller discovered the extent to which deference and
industry hegemony had broken down when he testified before the 1965 Senate
hearings on steering column safety. Steering columns in cars at that time
represented a major safety hazard to drivers. Even in very low-speed front-end
collisions, the steering column (at that time a straight metal rod which did not
collapse as in today's cars) was often pushed through a driver's body by the
force of the collision, often with fatal results. Miller tried to defend the
industry, which refused to modify the steering column even though the
technology was available and inexpensive, by claiming that the existing steering
columns actually increased safety in some cases by acting as "an additional
restraining device" to hold the driver in the car. Unfortunately for Miller,
scientific data by then existed that flatly contradicted his assertion and showed
the extent of unnecessary deaths steering columns caused (a reduction in
uncertainty about what caused accident deaths). Senator Robert Kennedy
quickly chastised Miller for his less than compelling testimony - a clear
indication of the breakdown in the industry's hegemony and the federal
govemment's resulting withdrawal of deference [Nader, 1972, pp. 98-99].
The Constraining Influences of Federalism
Federalism, and the larger legal culture of which it is a part, also played a
key role in the evolution of auto safety regulations. This role was mostly one of
maintaining the status quo. The law (civil and criminal) traditionally refused to
recognize car manufactuxers' responsibility for crashworthy designs [Nader,
1972]. Federalism also inhibited auto safety regulations. Pately because the
traffic safety establishment equated traffic fatalities with driver behavior, the
federal government viewed auto safety as a problem for the states to resolve,
except in the area of safer road construction. After all, if the driver was the
problem, federal involvement meant an increased federal presence (probably
coercive) in the lives of individuals. Few were willing to advocate that. The
decentralized nature of traffic accidents also prevented most people from
considering auto safety as a national crisis, even as fifty-thousand people died
annually in car accidents [Gusfield, 1981]. Only local traffic deaths made the
news reports and this framed the issue as a local problem. Thus, the federal
government did not regulate the auto industry until 1966 because the
"common-sense" view suggested that auto safety was not within the scope of
federal authority, despite the fact that all other transpot•cation systems had been
subject to federal regulation decades earlier [U.S. DOT, 1985, p. 270; Eastman,
THE FORD PINTO AND AUTO SAFETY REGULATIONS / 397
1984]. The boilers on steamboats, for example, had been subject to federal
safety regulation as early as 1838 [Rabin, 1986, p. 1212].
Federal officials often refused to intervene even when it became
apparent that state efforts were woefully inadequate [Eastman, 1984]. One
example of the impact of federalism is illustrative. Prior to federal regulation,
the quality of car brake fluid was quite variable. Some brands of brake fluid
would even begin to boil at relatively low temperatures. Brake fluid
vaporization often led to total brake failure, and thus car accidents. However,
when vehicles involved in crashes because of brake fluid vaporization were
examined after the accident, and after the brakes had cooled, the fluid would
appear normal. Obviously, investigators were likely to erroneously list "driver
error" as the cause of these accidents. When the problem was finally exposed,
states tried to pass laws to regulate brake fluid. When these laws failed,
Congressman Kenneth Roberts proposed federal regulation and asked the
Commerce Department for assistance in drafting it. Roberts was told,
This Department is certainly sympathetic with the safety objectives
contemplated by H.R. 2446. However, we would also like to
emphasize that the several States have traditionally exercised
regulatory authority over motor vehicle safety features; and it would
seem that the entry of the Federal Government into the field of
brake fluid standards regulation presents the basic question of the
proper role of the Federal Government generally in the regulation of
motor vehicle equipment [Nader, 1972, p. 298].
Roberts was ultimately successful in getting his bill passed on
September 2, 1962. This rather minor regulatory initiative by the federal
government set the precedent for increased regulatory involvement in 1966
[U.S. DOT, 1985, p. 103].
The Constraining Influences of the Legal Culture
Even after the ideological constraints of federalism were weakened, the
larger legal culture prevented the full implementation of regulatory efforts. The
"legal culture" is the "pattern of basic assumptions" that determines the nature
and scope of legal activities [Mashaw and Harfst, 1990, pp. 19-25]. Regulatory
efforts were hampered by two competing views of the role of the federal
government. According to one view, the federal govemment's role was to
maximize the profit potential of business enterprises through a rational
structuring of economic markets. This suggests limited or no regulation of
safety because this would inhibit profit maximization; besides, the "invisible
hand" of the marketplace should force manufacturers to provide a level of
safety in their products that is consistent with consumer demands. Another
view emphasizes the protective potential of the federal role. In effect,
regulation is required because consumers lack the ability to determine the
relative safety of complex products (e.g., a car with thousands of parts). Once
the federal government assumed a role in the regulation of auto safety, legal
398 / MATTHEW T. LEE
professionals (judges, lawyers, administrative officials, etc.) set about the task of
balancing these two views and determined the natttre and scope of federal
regulation [Mashaw and Harfst, 1990].
The Supreme Court has been instrumental in determining the scope of
federal power in regulatory endeavors. Until the 1930's, the Court afforded
greater constitutional protection to the profit ma 'yainizafion view, even if it did
not frame its protection in these terms. Starting with the New Deal, the Court
gradually reduced its interference with government regulation of economic
matters [Hall, 1996, p. 492]. For the next several decades, the Court generally
deferred to the wisdom of the legislative and executive branches, although the
courts at all levels were quite willing to prevent "unreasonable" interference
with profit maximization. As the scope of federal intervention expanded into
virtually all domains of social life by the 1970s, courts became less deferential
and increasingly required federal agencies to justify their rules and standards
[Rabin, 1986].
The impact of court interference on federal auto safety regulation was
far-reaching. A number of key cases affected the power of federal regulatory
efforts, as well as the views of NHTSA's staff regarding how the regulatory
process should work. In an 1898 case, Sm•yth v. Ames, the Supreme Court set up
the "rule of reasonableness." This test required an assessment of the impact of
regulations on affected businesses. This impact would then have to be weighted
against the benefits of the proposed regulation to determine whether
government intervention was justified [Cullen, Maakestad, and Cavender, 1987,
p. 125]. Thus, the government did not have unqualified authority to regulate
merely because human lives were at stake, business interests were also deemed
worthy of protection. Two federal cases, decided years after Sm•yth, directly
confronted auto regulation issues and provided for additional constraints on
the government. In one case, a federal court held that NHTSA was obligated to
allow manufacturers to voice objections to proposed regulations, which could
be issued only after "a rational consideration of the relevant matter presented"
[Automotive Parts •y' Accessories Assodation v. Boffd, 1968, p. 341]. This forced
NHTSA to evaluate and respond to every objection before issuing a standard.
As a result, auto makers developed the stalling tactic of attacking one part of a
proposed standard at a time. Thus, all NHTSA standards have had a long
"gestation period" [Mashaw and Harfst, 1990, p. 70]. The second important
federal case required that safety standards be "practicable" and provide an
"objective" safety benefit [Chryskr Corporation v. Dqartment of Transportation,
1972, p. 661]. The holding in this case allowed auto makers to delay the
promulgation of a standard by arguing that it was not practicable, and NHTSA
had to address each of these arguments as they appeared. In addition, NHTSA
could not issue a standard simply because it would "increase safety," the
standard had to demonstrate an objective safety benefit. In other words,
NHTSA had to show the number of lives that it would save and demonstrate
that its performance tests achieved this purpose. In sum, manufactttrers were
able to use the "role of reasonableness," and its corollaries, to consistently stall
THE FORD PINTO AND AUTO SAFETY REGULATIONS / 399
the regulatory process. This interference ultimately transformed NHTSA from
its original "technology-forcing" role (forcing manufacturers to increase auto
safety through the promulgation of auto standards) to a role built mostly
around recalling cars that did not meet existing (often weak) standards [Mashaw
and Harfst, 1990].
Federal Regulation and the Ford Pinto
The peculiar history of auto safety regulation is of central importance in
understanding the course of events in the Pinto case. The Pinto has been
characterized as "the most controversial automobile ever built," largely as a
result of perceptions about the gas tank that have been shaped by Mark
Dowie's exposd [Strobel, 1980, p. 169]. The Pinto was designed and marketed
in the wake of the 1966 legislation and by the time it was released in 1970, the
industry's hegemony had been considerably weakened. Vehicle design had
become a focus of federal regulation and popular interest, and many people felt
they were entitled to a higher degree of safety than manufacturers were pro-
viding. The "problem of causation" of auto accidents had shifted at the same
time that "the general expectation of justice" continued to expand. Further-
more, American institutions were suffering from legitimafion deficits and a
general social movement against corporate deviance was gaining momentum.
Thus, throughout the 1960s and 70s the safety views of the auto industry
subculture became increasingly divergent from the views of the larger culture.
By 1977, Dowie could have written about any number of auto safety issues,
since the public would have disagreed with many of the industry's safety practices,
but few would have captured the public's imagination like fiery Pinto crashes.
Besides, Dowie had a damning company memo demonstrating the calculated
ease with which Ford sacrificed lives in the name of profits [Dowie, 1977].
That infamous memo [Gnash and Saunby, 1973], along with other
intemal documents, indicated to Dowie that Ford knew that the Pinto was
defective, but callously figured that settling lawsuits would be cheaper than
fixing it. However, the memo can be more accurately viewed as a product of
the regulatory process - a process structured by the larger legal culture. It was
written in 1973, three years after the first Pinto was sold, so it cannot be the
document upon which design decisions (made in 1967-1969) were based. Ford
was aware of the outcomes of the court cases discussed above, thus
cost/benefit analyses showing a proposed standard was not "practicable" or
"reasonable" could bring about its delay or defeat. In fact, cost/benefit analyses
were routinely used by the industry and NHTSA in auto safety debates. Given
the lengthy history of a lack of concern with crashworthiness, industry
representatives felt justified in arguing against NHTSA's fuel tank standard.
The dollar figure used in its cost/benefit analysis was actual NHTSA's estimate
of the societal value of human life, not the estimated average corporate payout
to families of bum victims [Lee and Ermann, 1997; U.S. GAO, 1976].
400 / MATTHEW T. LEE
NHTSA's discretionary action also makes more sense in this context.
Frustrated by the court-imposed requirement of considering each objection (on
cost/benefit or other grounds) to its proposed standards, NHTSA was unable
to take the proactive safety role its employees favored [Mashaw and Harfst,
1990]. Federal standards remained weak despite NHTSA's attempts to
strengthen them. Although NHTSA was aware, years before Dowie's article
was written, that the gas tanks in Pintos and all of the other cars of its class
performed badly in rear-end collisions, it forced a recall of only the Pinto
[NHTSA, 1978]. When asked why the Pinto was held to a higher standard,
NHTSA engineer Lee Stricldand analogized that, "Just because your friends get
away with shoplifting doesn't mean you should get away with k too"
[Strickland, 1996]. Dowie's mobili•.ation of public opinion against the Pinto
enabled NHTSA to at least increase the crashworthiness of one car, even as
other cars escaped scrutiny.
Thus like all federal intervention, the regulation of auto safety has been
the result of conflict and compromise. Federalism, the legal culture, the
problem of causation, and the industry's hegemony have limited efforts to
increase auto safety. At the heart of the auto safety problem is the very idea of
regulation, because "regulation implies a toleration of conduct that causes, or
possesses the potential for harm, not the eradication of existing harmful acts"
[Hawkins and Thomas, 1984, p. 8]. As we have discussed, the personal freedom
and mobility provided by the automobile has become a "deeply held social
value" that even weak regulations threaten. Regulatory efforts can only attempt
to strike a balance between competing values. The Ford Pinto case shows how
ideology influences these attempts. Industry ideology justified the use of
cost/benefit analysis to fight what insiders perceived to be unreasonable
regulations, while the ideology of regulators supported the broad use of
discretion as an adaptation to industry regulation-stalling tactics.
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