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10/19/2008

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Judge Calabresi has presented the following example to illustrate the problem. Assume there is a public beach with a dangerous undertow just off the beach. The town council can reasonably follow one of two courses: (1) They can allow people to enter this area of the beach freely and swim in the vicinity of the undertow if they so choose as long as they are clearly warned of the danger. If someone who knowingly assumes the risk of entering the dangerous waters gets caught in the undertow, then we must allow the risk-taker to bear the consequences of his decision and drown. (2) If the public policy decision-makers judge that they or the public at large cannot stand to see people suffer the consequences of their freely chosen actions with clear warnings of risk, then the beach must be put off limits with guards to prevent thrill-seekers from entering the beach and taking a chance with the undertow.

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