Turning from the Statehouse to the Courthouse

Commentary by Pete du Pont

Robert Reich, former Clinton Administration Secretary of Labor, wrote early in 1999, "The era of big government may be over, but the era of regulation through litigation has just begun." Only liberal political activists, trial lawyers and some politicians could love his frightening sentiment.

This Pandora's Box of legislation through litigation was opened an inch by the tobacco lawsuits. Is it any wonder that mayors, tort attorneys and liberal activists are throwing it wide to go after guns - and what's next? A lawsuit is already underway against toothbrush manufacturers for the wear on teeth caused by regular brushing. How about sport-utility vehicles, fast-food and prescription drugs?

Lawyers and activists portray themselves as white knights coming to the rescue of consumers hurt by products put on the market without regard to the harms caused when they are misused. Politicians claim that they are just trying to recover costs the public incurs when these products cause harm. Does anyone really believe this claptrap?

The crocodile tears shed by the lawyers might be believable if they were working pro bono or if they gave a substantial portion of their winnings to those harmed or if they simply worked for a reasonable hourly rate. Don't hold your breath.

The activists, having seen paternalistic big-government solutions fail at the ballot box, have given up on democracy. Unable to convince legislators that further limiting consumer choices regarding guns, SUV's, whiskey, Viagra - pick your favorite product - will make society safer, they are attempting to use the courts to impose their views on a skeptical public. They would have the civil law embrace the principle that companies should be held responsible when people voluntarily use a legal, non-defective product and bad results occur.

State politicians are simply trying to avoid the tough job of cutting spending in an era when money does not flow quite so readily from the federal government to the states. As Senator Mitch McConnell argued recently, "These suits are becoming the great American hoax. . . The government and the trial lawyers talk about victims, innocent children and injured people, then they twist the law to file a suit for the government - not the victims. . . The government gets bigger, the trial lawyers get richer and the injured people get nothing."

The lawsuits directly challenge the constitutional separation of powers. In hearings, Senator Orrin Hatch noted this, stating, "[T]he lawsuits raise the issue of whether the courts and the trial attorneys, or the democratically elected legislatures of this country, should set policy for the American people." Replacing the will of the majority as expressed through the legislature with the determinations of an unelected judiciary will further erode democracy and the idea that individuals are responsible for their actions.

Popular products cause harm, too. Thousands of people die or are injured each year in automobile accidents, via faulty medical procedures and the misuse of prescription drugs, from eating fatty foods, and as a result of alcohol use. Don't be surprised when McDonald's, Seagram's, Bayer and GM are brought before the bar to account for the public health problems that their products contribute to.

If these products' manufacturers were forced to pay the government for costs incurred when people misuse them, some companies would be unable to survive the lawsuits and go bankrupt. Others might simply move overseas to countries that still hold individuals, rather than inanimate objects, responsible when people take criminal, stupid, negligent and/or self-destructive actions.

In the end, the true victims of these lawsuits will be consumers and voters. Consumers will face more limited food, recreation and entertainment choices in the hopeless pursuit of zero risk. Voters will see their ballot box choices negated by political elites in the courtroom. There are remedies. Judges could be gatekeepers - sifting the legal wheat from the chaff. Judges have the responsibility and authority to throw meritless lawsuits out of court. They rarely exercise this power.

Instead, whether because they support the lawsuits' aims, or because they are beholden to trial lawyers, they ignore hundreds of years of judicial precedent and let the legal crapshoot continue. If judges dismissed these suits and, further, imposed court costs, fines and lawyers' fees on the plaintiffs and their attorneys, fewer meritless suits would be brought.

Alternatively, legislators could ban lawsuits against manufacturers of legal, non-defective products when these products are criminally, negligently or self-destructively misused, thereby defending the democratic process, individual responsibility and consumer choice.

Either option takes political courage and faith. It requires courage to say no to well-funded lobbyists like trial lawyers. And it means having faith in the choices individuals make in our market economy. Let's hope courage and faith are plentiful in the nation's legislatures and courthouses.



The National Center for Policy Analysis is a public policy research institute founded in 1983 and internationally known for its studies on public policy issues. The NCPA is headquartered in Dallas, Texas, with an office in Washington, D.C.

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