NCPA - National Center for Policy Analysis

Stymied By Legislatures, Activists Turn To Courts

December 7, 1999

Activists pursuing a zero-risk society have teamed up with trial lawyers in search of untold wealth to sue companies with deep pockets -- all in the name of banning legal non-defective products that have occasionally caused harm when used improperly.

  • Critics say the activists -- having seen paternalistic, big-government solutions fail at the ballot box -- have given up on democracy and turned to the courts, thereby challenging the constitutional separation of powers.
  • Since a lawsuit is already underway against toothbrush manufacturers for the wear on teeth caused by regular brushing, who can doubt that makers of sport-utility vehicles, prescription drugs, alcohol and sellers of fatty fast-foods will not be next, critics ask?
  • In hearings, Sen. Orrin Hatch (R-Utah) pointed out that such lawsuits challenge the doctrine of the separation of powers, saying they "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."
  • Specialists in constitutional law warn that replacing the will of the majority as expressed through the legislature with the determinations of an unelected judiciary will further erode democracy and the concept that individuals are responsible for their actions.

To avoid the erosion of democracy and consumer choice, advocates of limited government are urging judges to exercise their responsibility to throw meritless lawsuits out of court. Moreover, judges should impose court costs, fines and lawyers' fees on the plaintiffs and their attorneys.

And legislators could ban lawsuits against manufacturers of legal, non-defective products when those products are criminally, negligently or self-destructively misused.

Such moves would promote individual responsibility, while protecting consumer choice.

Source: Pete du Pont (National Center for Policy Analysis), "From the Statehouse to the Courthouse," Washington Times, December 7, 1999.


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