New at Reason

Julian Sanchez | October 28, 2005

Jacob Sullum says protecting gun makers and burger peddlers from frivolous suits is a good idea—but bad law.

Comments

|10.28.05 @ 10:00AM|#

Once again, the answer is not federal immunities or the like, which ARE blatant violations of the Commerce clause (it takes a good lawyer or an average politician to make state tort law an issue of interstate commerce). The answer lies in getting rid of the "stream of commerce" standard for determining whether a state has jurisdiction over a defendant.

Allow manufacturers to avoid subjecting themselves to the jurisdiction of a state by refusing to do business there. Then, if the manufacturer decides to do business in a state, it has no argument - it was a voluntary choice on their part to subject themselves to that jurisdiction.

As it is, manufacturers have no choice. They can refuse to sell in PA, but if a PA customer drives to NY to buy something that was put in "the stream of commerce", the manufacturer is subject to PA jurisdiction.

The solution is in federal diversity jurisdiction rules, not in passing Commerce Clause flipping bills granting specific privileges and immunities.

Dave W.|10.28.05 @ 10:02AM|#

I wish they would protect us instead from frivolous claims that unfrivolous tort suits are frivolous.

MP|10.28.05 @ 10:07AM|#

I said it before and I'll say it again:

"I don't understand the Commerce Clause complaints. If a business operates in multiple states, the Congress has a right to legislation which normalizes the business environment."

|10.28.05 @ 10:20AM|#

Three thoughts:

1) I hope that nobody would object if Congress passed a law that only barred certain frivolous suits from federal court. Assuming that the law didn't have some loophole or pernicious detail, etc. etc. I'm just talking about the issue of jurisdiction here, not whether the specifics of the law are good.

2) The argument frequently comes up that a single plaintiff-friendly jurisdiction in a single state could bankrupt an entire industry. That is a valid complaint, but surely Congress could do something about it without dictating the standards of every single state. Along the lines of what quasibill seems to be saying, what would be objectionable (from a Constitutional perspective) about a law that basically said that if you sue in a state court you can only sue over matters that happened in that state?

So, a plaintiff can't just shop around the country until he finds a single sympathetic judge. If a state allows gun lawsuits and a manufacturer pulls out of that state, nobody can sue because a guy bought a gun in another state and then brought it across state lines. Or if a fat guy can't get anywhere with his McDonald's lawsuit in his home state, so he goes to a county with a sympathetic judge, buys one cheeseburger, he can only sue over the marginal health effect of the cheeseburger consumed in that jurisdiction, not over the lifetime of cheeseburger consumption that clogged his arteries.

3) Getting too concerned about a single bad judge allowing a ridiculous lawsuit seems akin to demands for perfect protection. It's like the people who go around removing swingsets from playgrounds on the grounds that "If it saves even one life..." Perfection is simply not possible.

|10.28.05 @ 10:34AM|#

""I don't understand the Commerce Clause complaints. If a business operates in multiple states, the Congress has a right to legislation which normalizes the business environment.""

Not if the subject is state TORT law. Tort does not equal commerce. Saying it does turns the commerce clause into a grant of unlimited power to Congress - in other words, you lose any authority to argue that Wickard was wrong.

Furthermore - "normalize" isn't an accurate description - imposing one's view of what's appropriate is better. And since I actually believe that federalism is an important part of the checks and balances in our Constitution, I don't think having the Feds impose their view of what is appropriate tort law on the states is a good thing.

|10.28.05 @ 10:40AM|#

I think the major concerns from the gun industry will be sharply mitigated by the requirement that class actions be filed in federal courts. Without venue shopping, the dangers aren't nearly as great. That little law may go down as one of the better things Bush has done.

Agree with quasibill on tort vs. commerce and on how wise it would be to set this kind of precedent under the commerce clause. Ick.

|10.28.05 @ 10:41AM|#

That is, if it is possible to sharply mitigate something. I may have made that phrase up.

MP|10.28.05 @ 10:51AM|#

Not if the subject is state TORT law.

OK. I understand that line of reasoning now. Thanks.

|10.28.05 @ 11:15AM|#

"Without venue shopping, the dangers aren't nearly as great. That little law may go down as one of the better things Bush has done. "

Agreed. Actually, it would be better to do away with class actions completely, but I don't think that could be done under the Commerce clause. You could eliminate them from federal courts, but that could possibly be counter-productive.

|10.28.05 @ 11:17AM|#

Uh, really should have hit preview on that one. Just leave it at "eliminating class actions is a good goal, but I'm not sure that eliminating them from federal courts would be a productive first step in that direction."

|10.28.05 @ 11:31AM|#

The problem is that if one state is allowed to impose huge liabilities on a product, they can effectively ban that product nationwide. I don't see any way around that fact. It seems that this is the classic case when Congressional Action is warrented under the Commerce Clause. We have the Commerce Clause so that states cannot enact protectionism against other states and so that the country has a common market. Congress has every right to prevent certain states from effectively destroying the the interstate trade in guns. Just because its done through the backdoor means of judicial action doesn't change its effects. I believe in States rights as much as anyone, but I do not see a problem here.

One other point. If liberals are so concerned about America's weight and the evil sellers of fatty foods, why hasn't anyone sued Ben and Jerry's yet? They make the fatty unhealthy food one can imagine and target it at children as well as encouraging adults to over eat it. What is their slogan, "if you can't eat the whole pint, there something wrong?" Ben Jerry seem to go unscathed in the fat wars. Of course, I only wonder this because I am foolish enough to think that the campaigns have anything to do with health instead of puritanical elites asserting their moral superiority over the rest of us.

|10.28.05 @ 11:35AM|#

C'mon man. You can taste the free spirit in each bite. Ben and Jerry's is the closest thing some of us have to the 60's, that is, those of us who don't make lsd in our bath tubs.

|10.28.05 @ 11:39AM|#

This law is nothing more than an attempt to treat the symptom instead of the disease.

But since we're unlikely to ever actually get to a point where the Constitution is treated as anything other than a historical curiosity, it's one I endorse.

|10.28.05 @ 11:41AM|#

"The problem is that if one state is allowed to impose huge liabilities on a product, they can effectively ban that product nationwide. I don't see any way around that fact"

I showed a way around that "fact" in my first post...

|10.28.05 @ 1:01PM|#

John-

An even more insidious example of liberal bias in the War on Fat is that nobody has gone after ketchup manufacturers. If there were no ketchup we probably wouldn't eat as many french fries.

But the liberal biases of the health nannies preclude them from going after Teresa Heinz Kerry.

And don't even get me started on the calorie content of some of the snacks at Whole Foods...

|10.28.05 @ 1:34PM|#

One other point. If liberals are so concerned about America's weight and the evil sellers of fatty foods, why hasn't anyone sued Ben and Jerry's yet?
Comment by: John at October 28, 2005 11:31 AM

See "Ice Cream Hangover" (Wall Street Journal, october 20 2005) at http://www.opinionjournal.com/cc/?id=110007428.

At $3.99 a pint, a gallon of Ben & Jerry's costs $31.92, or about 10 times as much as gasoline does.

|10.28.05 @ 2:26PM|#

Nobody important,

Three bucks a pint aint much to most people in this country. Two pints of that stuff a week will make you plenty fat. You don't quite need to buy as much of it as you do gasoline.

|10.28.05 @ 2:45PM|#

Quasabil,

I don't see how killing off International Volkswagon is a particaularly good idea. If I am minding my own business here in Texas and someone from out of State brings a defective product here from California, I shouldn't have to go all the way to California and sue them just because they don't actually sell the product here in Texas. Further, its too late in the game for your strategy to work. Gun firms have already sold guns in all 50 states. Not selling in particular states in the future is not going to save them from liability from all of the guns they have sold in those states in the past. Killing Volkswagon would not keep the trial lawyers from bankrupting the gun industry.

|10.28.05 @ 3:21PM|#

"I shouldn't have to go all the way to California and sue them just because they don't actually sell the product here in Texas"

Why not? They didn't submit to TX jurisdiction. If it was worth it to you to sue them, you'd go to California. Why should they have to travel to TX to defend your suit?

Another way around the problem would be to allow diversity jurisdiction, but modify choice of law in diversity cases. Then you could do it in TX federal district court, but apply CA law.

"Gun firms have already sold guns in all 50 states. Not selling in particular states in the future is not going to save them from liability from all of the guns they have sold in those states in the past. Killing Volkswagon would not keep the trial lawyers from bankrupting the gun industry"

I agree that the gun "nuisance" suits are wrong, but your solution is one that flips the commerce clause on its head and lets the federal genie out of the bottle. Some solutions are worse than the problems they purport to solve. Especially when the solution will be long term, and the problem is short term (eventually, new companies would replace the bankrupt ones, and the new companies could choose where they sold their product). I'm more interested in protecting federalism than protecting the pocketbooks of a particular set of investors.

|10.28.05 @ 3:33PM|#

>If liberals are so concerned about America's weight and the evil sellers of fatty foods, why hasn't
>anyone sued Ben and Jerry's yet?

Because Ben&Jerry's contributes to all the popular liberal causes. McDonald's doesn't.

|10.28.05 @ 3:34PM|#

>If liberals are so concerned about America's weight and the evil sellers of fatty foods, why hasn't
>anyone sued Ben and Jerry's yet?

Because Ben&Jerry's contributes to all the popular liberal causes. McDonald's doesn't.

|10.28.05 @ 3:40PM|#

"I agree that the gun "nuisance" suits are wrong, but your solution is one that flips the commerce clause on its head and lets the federal genie out of the bottle. Some solutions are worse than the problems they purport to solve. Especially when the solution will be long term, and the problem is short term (eventually, new companies would replace the bankrupt ones, and the new companies could choose where they sold their product). I'm more interested in protecting federalism than protecting the pocketbooks of a particular set of investors."

I am interested in being able to buy a gun. I am not so sure that choice of law would not apply California Law in my hypothetical case. As far as letting the federal genie out of the bottle. I think you might be about 60 years too late with that argument. I don't see this as any bigger of an expansion of federal commerce clause power than the civil rights cases of the 1960s or the indirect effect cases of the 1930s. If the federal government can regulate milk I produce and sell at the local farmers market, I don't see how it can't regulate whether I can sue a gun maker or not. I can understand where you disagree with all three examples and want the court to go back to the old standard under Lockner. However, considering that Lockner has been law for 60 years now and the feds have used it to regulate almost everything under the sun, I don't see how you can argue this law lets the federal genie out of the bottle.

Incidentily, if these suits had ever been allowed to proceed, the gun makers would have declared bankruptcy and there no doubt would have been some kind of settlement and trust similiar to the tobacco suits. This would have put the government in the business of selling guns to support the settlement fund. How funny would that have been?

|10.28.05 @ 3:47PM|#

"I don't see how you can argue this law lets the federal genie out of the bottle."

Yeah, perhaps a poor choice of words. Hows about reinforcing an already improper understanding of how our government was meant to function?

I guess I just don't want to play the authoritarian's game to win - I know that that is unstable in the long run. Sooner or later, someone you don't like will be in charge of the federal government, and when you argue for federalism, they'll be able to throw this case right back at you and show that your belief in federalism is only motivated by your stance on given issues, and not by a principled belief in the benefits of de-centralization by themselves.

Larry A|10.28.05 @ 4:19PM|#

There's a little more to this case than interstate commerce. The lawsuits allege that, even though firearms manufacturers sell firearms through a distributon system that's heavily regulated on both the federal and state (and sometimes county and city) levels, complying with all laws, the manufacturers are still responsible if someone over which they have no control uses a gun in an illegal act. Even if the firearm is illegally obtained. Even though virtually every court hearing such a case has thrown it out. Even though two-thirds of the states have prohibited such suits.

That, narrowly, is what the law prohibits.

Under the law, as passed, if manufacturers, distributors, or retailors sell firearms that don't work as designed, illegally sells firearms, or even legally sells firearms to someone the seller should have known was going to use it illegally, they can still be sued out of business.

Also see above where the Attorney General for the state of New York has forced UPS to quit delivering cigarettes to you in any of the 50 states.

|10.29.05 @ 2:40PM|#

If liberals are so concerned about America's weight and the evil sellers of fatty foods, why hasn't anyone sued Ben and Jerry's yet?

Ah, the beauty of language. Is there ever a political conversation that isn't enriched by the addition of either "why don't them liberals" or "why don't them neocons" into a previously nonpartisan discussion?