Campaigning in the Court

The Misuse of the Legal System Against Unpopular Industries

Jacob Sullum | September 16, 1999

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Just as the tobacco deal raised cigarette prices, a settlement of the gun litigation could make firearms substantially more expensive, depending upon how big the payout is. Alternatively, the cost of defending the cases and paying damages could drive up prices. If companies are pushed into bankruptcy by the litigation, that would also tend to reduce supply and make guns harder to obtain–a welcome consequence for the activists backing the suits. Assuming a settlement is reached, the cities could insist that manufacturers stop making certain kinds of guns, deal with fewer distributors, put limits on the number of guns that can be sold to one customer, stop advertising guns for civilian self-defense, or make other changes on the gun control wish list. The cities would not need a single legislator’s approval, even though their demands would affect the entire country, and they would not have to worry about the Second Amendment.

Anti-smoking and anti-gun activists have turned to the courts precisely because they have not been able to get what they want by appealing to our elected representatives. Ahron Leichtman, president of Citizens for a Tobacco-Free Society, argues that "massive damage awards and looming liability can drive up the price if cigarettes and drive down consumption, addiction and disease. Where proper regulation has been thwarted by the tobacco lobby, the courts can promote health and serve the public interest." Other commentators call suing the tobacco companies "a cancer control strategy" and an example of "litigating for the public’s health." Similarly, John Coale and Wendell Gauthier, two of the leading attorneys involved in the gun litigation as well as the tobacco lawsuits, have suggested that trial lawyers serve as a fourth branch of government, making up for the legislature’s lack of vision and courage.

The implication is that a political system that fails to enact obviously sensible policy proposals must be hopelessly corrupt. But at least that system operates in the open, with legislators subject to constitutional limits and accountable to their constituents. Government by litigation, in which negotiators set policy behind closed doors, has no such constraints.