New book by Don Gifford of the University of Maryland, which he discusses with Danielle Citron at Concurring Opinions. Excerpt:
What's wrong with this trend?
Such litigation is troubling for three reasons. First, an empirical one: it has not worked. A dozen years after the settlement that ended the tobacco litigation, most public health experts view it a colossal failure. While the agreement protected the profitability of the large tobacco companies, it did not cause any decrease in smoking rates among young people. The negotiations served the people negotiating the deal at the table well--the state attorneys general who negotiated it and were able to proclaim great public health victories went on to run for positions as governors or U.S. senators; their litigation partners, private plaintiffs' attorneys, earned as much as $150,000 per hour; the tobacco companies have survived and now thrive. But the public did not. The second problem was that the success of such suits required an unprincipled expansion of common law doctrines including the tort of public nuisance and the ability of the state to sue as parens patriae. That's probably why most state supreme courts ultimately rejected the litigation against pigment manufacturers, effectively ending the litigation solution. Third, and most important, these litigation cycles shifted the responsibility for regulating products, and even taxing and spending, away from state legislatures and the administrative agencies that they create to deal with certain problems, to the state attorneys general. Often what the attorneys general proposed contradicted past legislative enactments. The governor of Mississippi actually sued the Mississippi attorney general, unsuccessfully, to stop the tobacco litigation. The attorneys general and public health advocates had criticized back-room deals in legislative committees, but their own decision-making processes were far more opaque than that of legislatures. State attorneys general have neither the competence nor the legitimacy to comprehensively regulate products or to solve public health problems.