Using Litigation to Make Public Health Policy: Theoretical and Empirical Challenges in Assessing Product Liability,Tobacco,and Gun Litigation

Teret S. and Jacobs M. , “Prevention and Torts: The Role of Litigation in Injury Control,” Journal of Law, Medicine & Health Care 17 (1985): 17–22; Jacobson P. D. and Warner K. E. , “Litigation and Public Health Policy Making: The Case of Tobacco Control,” Journal of Health Politics, Policy, and Law 24 (1999): 769–804; Cook P. and Ludwig J. , “Litigation as Regulation: Firearms,” in Viscusi W. K. , ed., Regulation as Litigation (Washington, D.C.: AEI-Brookings, 2002): 67–92.

See, Hubei P. , Liability: The Legal Revolution and Its Consequences (New York: Basic Books, 1988); Krauss M. , Fire and Smoke: Government Lawsuits and the Rule of Law (Oakland, CA: Independent Institute, 2000); Reh J. , “Social Issue Litigation and the Route Around Democracy,” Harvard Journal on Legislation, 37(2000): 515–520; Olson W. , ed., The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law (New York: St. Martin's Press, 2003); Catherine Crier, The Case Against Lawyers (New York: Broadway Books, 2002); Turley J. , “A Crisis of Faith: Tobacco and the Madisonian Democracy,” Harvard Journal on Legislation 37 (2000): 433–480.

See Vernick J. Mair Samia J. Teret S. , and Sapsin J. , “The Role of Litigation in Preventing Product-Related Injuries,” Epidemiologic Reviews 25 (2003): 90–98, at 91.

For a discussion of the “liability tax,” see Litan R. , “The Liability Explosion and American Trade Performance: Myths and Realities,” in Schuck P. , ed., Tort Law and the Public Interest: Competition, Innovation, and Consumer Welfare (New York: Norton, 1991): 127–150, at 132–138. For a discussion of reduction in safety innovations for fear of litigation, see Huber , supra note 2, at 153–171.

Dagan H. and White J. , “Government, Citizens, and Injurious Industries,” New York University Law Review 75 (2000): 354–428, at 378–382.

Burnett H. S. , “Suing Gun Manufacturers: Hazardous to Our Health” Texas Review of Law and Politics 5 (2001): 433–494, at 478.

For an introduction to the debate about defensive gun use, see Kleck G. , Targeting Guns: Firearms and their Control (New York: Aldine de Gruyter, 1997): 147–190 and Hemenway D. , “Policy and Perspective: Survey Research and Self Defensive Gun Use: An Explanation of Extreme Overestimates,” Journal of Criminal Law and Criminology 87 (1997): 1430–1444. For an introduction to the debate over gun ownership and crime deterrence, see Lott J. , More Guns, Less Crime: Understanding Crime and Gun Control Laws (Chicago: University of Chicago Press, 1998); Ayres I. and Donahue J. III , “Shooting Down the ‘More Guns, Less Crime’ Hypothesis,” Stanford Law Review 55 (2003): 1193–1299.

See Vernick , supra note 8, at 91; Jacobson and Warner , supra note 1, at 784; Jacobson P. and Soliman S. , “Fields of Law: Litigation as Public Health Policy: Theory or Reality?” Journal of Law, Medicine & Ethics 30 (2002): 224–235, at 225.

See Schuck P. , “Why Regulating Guns Through Litigation Won't Work,” in Lytton T. , ed., Suing the Gun Industry: A Battle at the Crossroads Gun Control and Mass Tort (forthcoming, Ann Arbor: University of Michigan Press, 2005): Chapter 9.

See Schuck P. , “The New Judicial Ideology of Tort Law,” in Olson W. , supra note 2, 4–17, at 16.

On the complexities of tobacco litigation, see Rabin R. , “The Third Wave of Tobacco Tort Litigation,” in Rabin R. and Sugarman S. , eds., Regulating Tobacco (Oxford and New York: Oxford University Press, 2001): 176–206; on gun litigation see, Lytton T. , “An Overview of Lawsuits Against the Gun Industry,” in Lytton , supra note 9. “Suing the Gun Industry,” introduction.

On these ways in which litigation can affect the policy making process, see Mather L. , “Theorizing About Trial Courts: Lawyers, Policymaking, and Tobacco Litigation,” Law and Social Inquiry 23 (1998): 897–940, at 912–932.

On these ways in which litigation can create specific regulatory outcomes, see Sugarman S. , “Comparing Tobacco and Gun Litigation,” in Lytton , Suing the Gun Industry, supra note 9, chapter 8.

On the ways in which litigation complements legislative and agency policy making, see Lytton T. , “The Complementary Role of Tort Litigation in Regulating the Gun Industry,” in Lytton T. , Suing the Gun Industry, supra note 9, chapter 10.

See Schuck , supra note 9, “Why Regulating Guns Through Litigation Won't Work.”

Jacobson and Warner , supra note 1, at 784; Jacobson P. and Soliman S. , “Fields of Law: Litigation as Public Health Policy: Theory or Reality?” Journal of Law, Medicine & Ethics 30 (2002): 224–235, at 225. See generally, Komesar Neil , Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (Chicago: University of Chicago Press, 1994).

Alden E. and Buckley N. , “All Cigarette Makers But One Oppose FDA Regulation Plans: Restrictions on the Market Will Just Entrench Philip Morris's Position as Number One, Say Its Rivals,” Financial Times, July 19, 2004, at 6; Zak D. , “Teen Smokers Packing it In; Both Nationally and Locally, Rates are Down as More Students are Kicking the Habit,” Buffalo News, July 7, 2004, at A1.

This settlement eventually unraveled. See, Brown P. and Abel D. , Outgunned: Up Against the NRA (New York: Free Press, 2003): 182–214, 298–299.

Nagareda R. , “Gun Litigation in the Mass Tort Context,” in Lytton T. , Suing the Gun Industry, supra note 9, chapter 7.

Olson , supra note 2, at 7–8, 12–13. For an especially thoughtful account of the tort system as an institution primarily designed for the adjudication of private claims for redress, see Goldberg J. C. P. , “Tort Law for Federalists (and the Rest of Us): Private Law in Disguise,” Harvard Journal of Legislation & Public Policy 28 (2004): Forthcoming.

Olson , supra note 2, at 77–78, 226–229.

Catherine Crier goes so far as to call citizens to “revolt” and “break the rules!” issued by policy making courts. Crier , supra note 2 at 5.

Brown and Abel , supra note 18, at 10. On the invocation of civil rights litigation by plaintiffs' lawyers in high-stakes contingent fee litigation, see Erichson H. , “Doing Good, Doing Well,” Vanderbilt Law Review 57 (forthcoming 2004), introduction. But see Mather , supra note 12, at 907–908.

See e.g. Jacobson and Warner , supra note 1, at 782–783; Jacobson and Soliman , supra note 8, at 224 fn. 1; Mather , supra note 12, at 899.

See e.g. Olson , supra note 2, at 94–98, 306–314; Crier , supra note 2, at 4. For a more thoughtful invocation of the founders' view of government, see Turley , supra note 2, at 463–469.

Blackstone William , Commentaries on the Laws of England, A Facsimile of the First Edition of 1765–1769, Volume I: Of the Rights of Persons (1765) (Chicago and London: University of Chicago Press, 1979): at 69.

On the use of public policy considerations in common law adjudication, see generally Eisenberg Melvin , The Nature of the Common Law (Cambridge: Harvard University Press, 1988).

For example, compensation for injury due to most forms of negligent conduct is regulated by common law.

See Horowitz , The Transformation of American Law, 1980–1860 (New York: Oxford University Press, 1992); Goodman , Shifting the Blame: Literature, Law, and the Theory of Accidents in Nineteenth Century America (Princeton: Princeton University Press, 1998); Bergstrom , Courting Danger: Injury and Law in New York City 1870–1910 (Ithaca: Cornell University Press, 1992); White G. , Tort Law in America: An Intellectual History (Oxford: Oxford Press, 1980); Nelson William , “From Fairness to Efficiency: The Transformation of Tort Law in New York, 1920–1980,” Buffalo Law Review 47 (1999): 117–226.

For example, determining whether the defendant owed the plaintiff a duty of care in negligence claims involves explicit judicial policy inquiries. The doctrine in New York is typical: “the definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration.” Palka v. ServiceMaster, 83 NY 2d 579, 585 (NY 1994). As Justice Benjamin Cardozo put it, “when the question is one of supplying the gaps in the law, it is not of logical deductions, it is rather of social needs, that we are to ask the solution.” Cardozo J. , The Nature of the Judicial Process (New Haven: Yale University Press, 1921): at 123.

See generally, Eskridge W. , Dynamic Statutory Interpretation (Cambridge: Harvard University Press, 1994).

I am indebted to Peter Schuck for pointing this out.

I am indebted to Robert Rabin for pointing out that in many instances, legislatures, not courts, are the “gap fillers.”

Lytton T. , “The Complementary Role of Tort Law,” supra note 14.

See Weissert C. and Weissert W. , Governing Health: The Politics of Health Policy, 2nd ed., (Baltimore: Johns Hopkins University Press, 2002): at 173.

This membership figure for the NRA is from Richard Robinson, Tennessee field representative for the NRA, quoted in Schroeder O. , “Movement Afoot to Form Local NRA Committee,” The Leaf-Chronicle, January 12, 2003, at 7B. Davidson O. G. , Under Fire: The NRA and the Battle for Gun Control (Iowa City: University of Iowa Press, 1998): At 306, puts the figure lower at 2.7 million members in 1998, a figure which may include deceased lifetime members. The membership figure for the Brady Campaign is from Overholser G. , “Staying on Target; With Plans for Theme Restaurant on Times Square, The NRA Continues to Lack Common Sense,” Chicago Tribune, May 31, 2000, at 23; for the Sierra Club from Sierra Club, “Why Join the Sierra Club,” available at <http://www.sierraclub.org/membership/why/?promocode=J04W0T0010> (Last visited Sept. 14, 2004), and for the ACLU from ACLU, “About the ALCU,” available at <http://www.aclu.org/about/aboutmain.cfm> (Last visited on Sept. 14, 2004).

See Schuck P. , The Limits of Law: Essays on Democratic Governance (Boulder: Westview, 2000): 204–250.

For more on the NRA and Brady Campaign legislative tactics, see Lytton T. , “The NRA, the Brady Campaign, and the Politics of Gun Litigation,” in Lytton , Suing the Gun Industry, supra note 9, chapter 6.

See Eskridge W. Frickey P. , and Garrett E. , eds., Cases and Materials on Legislation: Statutes and the Creation of Public Policy, 3rd ed., (St. Paul: West, 2001): 66–69.

Gailey P. , “The Gun Lobby vs. The Government,” New York Times, Sept 18, 1981, at A18.

See, e.g. Bureau of Alcohol, Tobacco, and Firearms, Department of the Treasury, ATF Crime Gun Trace Analysis Report (February 1999).

Ibid, ATF Report, at 20–22.

For example, some lawsuits against the gun industry have attempted to force the gun industry to adopt one-gun-per-month purchase limits that some state legislatures have failed to pass. See Lytton , supra note 14, “The Complementary Role of Tort Law.”

Olson , supra note 2 at 77–8, 226–9

I am indebted to Peter Schuck for suggesting this.

Eskridge , supra note 39, et. al at 60–62.

Erichson , supra note 23, introduction.

Jacobson and Warner , supra note 1, at 14.

See Huber , supra note 2; Olson , supra note 2; Crier , supra note 2.