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What a pleasure to be featured with David Wagner

March 13, 2007 2:44 PM

Well, it is an honor and a pleasure for this lawprof to be featured along with his illustrious student. I suppose this should make me feel quite old, but it doesn't! My only complaint is that, after my earlier featured discussion on firearm liability, "Smoking Guns" (and a book I wrote on tobacco and firearms, entitled "Fire and Smoke") this featured discussion is entitled "Smoke and Mirrors." Enough with the smoke already, it is clouding my eyes!! Nonetheless, I hope I will be able to see clearly through the maze that our Supremes have set up for us in Philip Morris USA v Williams.

The plaintiff in Williams was the widow of a long-time smoker. This widow alleged that Philip Morris deceived her husband into not quitting smoking. According to the wife, the late Mr. Williams said that ��the tobacco companies don�t even say they�re cancer sticks, so I can smoke them.�� Although his wife helpfully pointed to the warning labels on cigarette packages and told her husband that cigarettes would kill him, Mr. Williams allegedly responded: �This is what the Surgeon General says, it�s not what [the] tobacco company says.� According to his wife, Williams gave no credence to the Surgeon General�s warnings because he believed that the tobacco companies would simply not sell a harmful product. �[H]e would say �Well, honey, you see I told you cigarettes are not going to kill you, because I just heard this so-and-so guy on TV, and he said that tobacco doesn�t cause you cancer!�� Now, I don't know about you all, but I know of no one on earth who talks like the decedent allegedly did, and I know of no one who thinks that no seller could possibly fib about the quality of the product he was selling. Of course, the jury can choose to believe whom it will, and to no one's surprise it chose to believe Ms. Williams. [Is the jury interested in buying a bridge in Brooklyn from me?] What possible motive could the plaintiff have to "embellish", after all?

That said, tobacco companies' behavior over the years has certainly been reprehensible on many different levels. Thank You For Smoking is a nice caricature of Big Tobacco's awful behavior. But awful behavior does not tort damages merit! Tort damages are awarded following proof of wrongdoing, causation, and damages. Causation was established when the jury believed the astounding rendition by Ms. Williams. As to damages, well, punitive damages are essentially awarded in cases of intentional tort. Here, I guess, fraud is the intentional tort du jour.

Are there limits on punitives? My own writings, which David likely knows, claim that punitive damages cross the line between private ordering [tort, contract, property, self-determination among and between individuals] and public ordering [relations between Big Brother and lil' ol' citizens, criminal law and the like]. Not for nothing is the state subject to constitutional limitations when public ordering is involved.

As to the constitutional limitation of "due process", I like David think it is phoney-baloney (but he put this in a much more scholarly way -- since I am not a constitutional scholar, but just a torts guy, I will resort to plain English). I personally preferred "excessive fines", considered but (in my opinion very unwisely) rejected by the Supreme sages in Browning Ferris v Kelco some years back. I think the Supremes have been atoning for their sins ever since, trying desperately to find a constitutional measure to rein in out-of-control punitives after they had rejected the most obvious candidate. [And in a future installment I will explain why Williams was tailor-made for this.] At least Justice Stevens, dissenting, expressed regret about the rejection of the Excessive Fines theory.

So that's my initial volley. Like David, I think states have police power to regulate and do all sorts of silly things. Perhaps unlike David, I don't think those things include taking money from (out-of-state) corporations without providing constitutional protections.

But I don't think the Supremes in Williams gave any real guidelines about what is verboten and what is allowed. Much more litigation to follow, I'm afraid, with no one gaining but we lawyers. More on all this anon.

Till tomorrow, David.

Michael I. Krauss
Professor of Law
George Mason University




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.