Letters

Fuming About Smoking
In his article "Smoke and Mirrors" (Feb.), Jacob Sullum writes: "By entering a business that allows smoking, you consent to be exposed to tobacco smoke, just as you consent to be subjected to loud music by entering a dance club or attending a rock concert."

What? Have I missed something? People go to clubs and concerts (as a rule) precisely because they wish to hear music. I have never heard of an establishment which people frequent in order to inhale other peoples' tobacco smoke.

Lewis Kapell
Manlius, NY

If someone wishes to commit suicide by a such a slow and uncertain method as smoking tobacco, that is their right, though one would first like to see them making adequate provision for their dependents. However, should someone wish to commit hara-kiri, I would hope that they would have the decency to do it in their own home. Were they to do it in my home or my place of work, I would probably feel like suing their estate for my mental anguish, not to mention the cost of cleaning the carpet.

Smokers are eager to claim that their addiction has not been proved to harm others and yet seem curiously insensitive to those who have an allergic reaction to tobacco smoke or who just plain dislike the smell. Every time my employer allocates a smoker to the next office, Mr. Sullum implies, I should be forced to uproot myself. Jobs in my field are rare enough.

The real issue in smoking versus liberty is not the rights of smokers: My right to breathe clean air is surely greater than the smoker's right to pollute it. The issue is the right of a manufacturer to sell a product which is of no benefit to the purchaser and which is indeed positively harmful to him or her. In the ideal marketplace, given a fully informed public, there would be no purchasers for tobacco or for any of the other worthless and dangerous products on sale today. Until that day arrives I will happily accept government regulation of those who defraud the public. Is this paternalism or simply the enforcement of sound business ethics?

Snake oil did no harm except to the wallet; it might even have made the purchaser feel better. By contrast, smoking has no known benefits. Tobacco users are dependent on a harmful product which makes them feel as good after a cigarette as nonsmokers do all the time. They should be encouraged to stop, if they still can, and every effort should be made at the personal and governmental level to discourage the creation of further addicts.

Thomas M. Napier
North Wales, PA

Smoking is an annoying habit like the indiscriminate discharge of guns in public is an annoying habit. It's an annoying habit like drunk driving is an annoying habit. It's a drug addiction, not a habit. It maims and kills people, it doesn't just annoy us. Jacob Sullum greatly trivializes and euphemizes. Such deception does not belong in a magazine that prides itself on honest reporting.

Second, it makes no difference which end of the cigarette you are on. Smoking indoors results in inhaling the same chemicals and radioactive particles over and over. Your radiation exposure is greater if you smoke than if you work in a nuclear power plant. Tobacco smoke also coats ventilation systems with tar, a perfect substrata for molds and mildews. Third, the free market will not protect us from smokers any more than it will protect us from other crazy people. Laws banning smoking are highly desirable. You cannot reason with a smoker. If he were reasonable, he would not engage in such a senseless activity.

My personal prescription is to send all smokers to the Smith and Wesson Smoking Cessation Clinic, or allow normal people to literally fight back with full protection of the law on the grounds of self-defense. Of course, I realize that won't work in our society, so a good compromise would be a ban on public smoking and a policy that treats tobacco just like any other deadly drug.

Mark Lamendola
Cleveland, OH

The medical data overwhelmingly proves tobacco smoke to be toxic and carcinogenic. Imagine arriving at a public restaurant to find that all the food has been laced with toxins. You must choose between consuming the toxins or leaving. That's the choice I face every time I enter an enclosed public place where smoking is permitted. The only difference is the method of consumption.

In this way, smokers have been imposing their preference upon others since tobacco was invented. Our efforts are intended only to correct this long-standing injustice.

This is not a question of freedom or lack thereof. Even if the only negative effect of tobacco smoke is its bad smell, it is a question of one group's right to smell bad versus another group's right to be free of such smells. We must find a way to accommodate both.

Gilbert A. Hustings
Lakewood, CO

Jacob Sullum cites a Rand Corp. study showing that "smokers tend to die early." Obviously this implies that nonsmokers die late. The latter has been recognized by some insurance companies in charging nonsmokers lower premiums for life insurance. As far as I am aware, no insurance company offers better terms to smokers for annuity policies because of shorter life expectancy. Unfair discriminatory practices such as this have become all too common under our present thorybocracy. (From the Greek thorybos, meaning noise of a crowd.)

Leonard J. Goldwater, M.D.
Chapel Hill, NC

I have often wondered why the antismoking activists didn't focus on the obvious inconsistencies of government policies as the primary way to reduce the availability of tobacco. If smoking is as harmful as the Surgeon General's warnings indicate, for example, why should the government subsidize farmers who grow tobacco? Why not encourage them to grow something else, if only by removing price supports on tobacco?

After reading "Smoke and Mirrors," I think maybe I see why. The government is under no compulsion to be logical or consistent. Its motivations spring from quite unrelated concerns. When attempting to influence the course of an enormous organization that is itself elitist and paternalistic, it may simply be more practical to support initiatives that have a chance to pass.

I support some antismoking legislation on grounds of public safety. As I recall it, the airline no-smoking laws came in response to an incident in which a smoker's carelessness set a plane on fire. Second-hand smoke is one thing, second-hand fires are quite another.

Dick Crawford
Napa, CA

Jacob Sullum's thought-provoking article suffers from an unfortunate failure to apply to his subject matter the libertarian principles that usually inform your publication. The most relevant principle is that deliberately hurting another person, in the absence of either an overriding emergency or that person's consent, is initiation of force.

Many people are sensitive or allergic to smoke, tobacco, or both, and experience severe discomfort when exposed to tobacco smoke. Exposing a smoke-sensitive person to tobacco smoke without their consent is initiation of force. It follows that a smoker who does not wish to initiate force should not expose others to smoke without their consent. This may be achieved by not smoking; by smoking without exposing others to smoke—for example outdoors, or in a well-ventilated area, or alone; by obtaining explicit consent; by smoking with assumed consent, ready to stop or move if anyone contradicts the assumption; or by smoking in a "free fire zone"—a place whose owner has obtained the requisite consent from everyone present.

Unless one has explicitly agreed to be exposed to smoke, or has entered a place whose owner asks nonconsenters to keep out, one has not consented to assault by smoke. Contrary to Mr. Sullum's assertion, "entering a business that allows smoking" does not mean that "you consent to be exposed to tobacco smoke."

Claiming that I agree to breathe smoke any time I venture out of a smoking prohibited enclave is rather like saying that Mr. Sullum consents to be punched in the nose every time he enters a place whose owner does not explicitly prohibit the swinging of fists.

If there is any conclusion to be drawn from Mr. Sullum's facts, it is that when oppressed people rise up against their oppressors, the rights of the erstwhile oppressors may get stepped on. Those who wish the antismoking movement to go away should start by educating smokers to respect the rights of smoke-sensitive people. No one will stand up for the rights of smokers while doubled over from choking on smoke.

Adam V. Reed
Morganville, NJ

Jacob Sullum's "Smoke and Mirrors" obscures the social problem caused by smoking: spillovers. Smoking is a noxious nuisance to nonsmokers, and cigarette smoke clings to clothing. The cumulative lung damage to nonsmokers cannot be dismissed. Cigarette taxes are a utilitarian way to discourage smoking and should be used to prevent needless deaths. It is a proper function of government to protect the essential rights of citizens. As John Locke wrote, it should expand freedom when it can.

It is a positive development that more restaurants have nonsmoking areas to enhance their environment. A nonsmoking night club recently reported an increase in customers. It is clear that fewer people are smoking, and growing numbers are demanding clean air in public places.

Any noncoercive effort to improve air quality should be applauded. Unless a smoking bag or container is invented, the negative externalities of smoking need to be addressed—and curbed in a humane fashion.

Brent J. Bielema
Fulton, IL

I agree with Jacob Sullum that "tobacco smoke seems to have a peculiar ability to obscure issues," though not with his judgment as to what issues have been obscured. His discussion of "secondary smoke" takes up only the question of whether the smoke exhaled by smokers is harmful to the health of those around them. This suggests a presumption that is totally bizarre for a supposed libertarian: that it is all right to subject users of public spaces to anything that causes them no physical damage, no matter how much discomfort it causes them or how much it hinders their enjoyment of whatever it was that brought them there to begin with—for example, the food offered by a particular restaurant.

A huge variety of activities ranging from fondling a person to spitting on him do the victim no physical harm but would normally be regarded as outrageous invasions of his person if they were done without his permission. Mr. Sullum has a right to pollute the air in any space over which he can claim proprietorship, but otherwise his right to exhale smoke ends where my mucus membranes begin.

There remains, of course, the question of whether "secondary smoke" poses a health risk to those on whom it is inflicted, and Mr. Sullum is aware that this question is a matter of controversy. However, a person need not wait until the controversy over the research is resolved before deciding that the potential risks from secondary and primary smoke are best avoided; it is as foolhardy to ignore health risks as it is to blithely associate with a person under indictment for a series of murders merely because he hasn't yet been convicted. Smokers are entitled to try to convince me that my worries about secondary smoke are unfounded, but not to arrogate to themselves the right to decide for me that smoke poses no risk worth worrying about.

James D. McCawley
Dept. of Linguistics
University of Chicago
Chicago, IL

While I quite enjoyed Jacob Sullum's "Smoke and Mirrors," I believe his informative essay merely unscrewed the tight lid on a jar of worms without having actually removed it.

I am a smoker who has found himself shunned, ostracized, and segregated in public, at the office, and even socially. I was not surprised that Mr. Sullum opened his essay with an anecdote about a libertarian supper club; some of the most rabid and demonstrative antismokers hail from the ranks of Objectivists, libertarians, and other movements that oppose the very kind of government-mandated social puritanism these individuals nonetheless seem to endorse.

Like much of the nonintellectual, uncritical public, these same cheerleaders for freedom have proven themselves to be just as susceptible to the barrage of propaganda and "public service" messages about smoking and other topical issues. Their behavior has not instilled in me much trust or regard for their professed convictions.

But in a larger sense, I do not believe Mr. Sullum was hard enough on the antismoking movement and its corps of activists, whose portrait he barely sketched. These people are after nothing less than universal obedience and conformity, and I do not believe that the particular issue matters to them. The universes of these petit fascists are small and mean: Fur coats, aerosols, pornography (and not even pinups), television programming, or private clubs would do just as well a smoking as a cause célèbre. The diminutive, nonfundamental nature of these and other current issues reflects the apex of their moral and intellectual concerns.

In a free society, individuals of this ilk would be shunted to the fringes and never be granted the opportunity to impose their pet peeves on free men. In our "democratic" society, they can bend the ear of a government or politician whose commitment to "freedom" must mean an expansion of government power, however minute—otherwise they have no interest. Absolute rights have virtually disappeared from the letter of the law, constitutional or otherwise. What we are getting now is a choirload of "rights" of which Roosevelt's "Four Freedoms" were the original barbershop quartet. Such disintegration has no bounds; one can redefine freedom by negative criteria ad infinitum, until everyone is immobilized, cleansed, cut from the same cloth, and ready to serve and obey. The antismoking movement is but a single constituent of the spreading miasma of soft totalitarianism in America.

Edward Cline
Palo Alto, CA

The underlying motivations of antismoking organizations should be examined in light of their lack of objections to one particular niche-market cigarette. There has been no furor over the introduction of Bucks, a brand aimed at rural, white males—especially hunters. This segment of the population is both poor and undereducated—two characteristics that put them into the special class of people that supposedly need the protection offered by the antismoking groups. Why aren't these groups interested in the health and well-being of gun-toting, Southern rednecks?

Allyn Uptain
Chipley, FL

Mr. Sullum replies: Mr. Reed and Mr. McCawley are right; from a libertarian perspective, it does not matter whether tobacco smoke is a health hazard or merely a nuisance. I agree that consent is the crucial issue. But consent need not always be explicit. If you enter a business knowing that you may be exposed to tobacco smoke on the premises—and this is quite well understood, for example, in a restaurant, where one is asked at the entrance to choose between smoking and nonsmoking sections—you have granted implicit consent. Similarly, if you were told that you might be punched in the nose during your meal, you would probably stay away; if not, your nose would be fair game. The difference is that it's far more common for businesses to allow smoking than it is for them to permit fistfights, so more effort must be made in the latter case to inform the customer.

Discovery Channels
In "No Secrets" (Feb.), Walter Olson says of the pervasive invasions of privacy committed by attorneys through the discovery process: "We would never in this country entrust such a power to the public magistrate, even in a time of emergency and civil disorder. It would be too obviously a weapon of tyranny."

In point of fact, the same techniques described by Mr. Olson, as well as other even more insidious techniques, are used frequently by attorneys employed by agencies of the government. While both the IRS and the SEC have long histories of trampling individual rights through abuses of discovery in the process of their crusades, the most recent administrative culprit is the Office of Thrift Supervision (OTS). Not only are these administrative depositional "fishing expeditions" performed repeatedly by officers of the OTS, but the rules of civil procedure governing such depositions, even such basic tenets as notice and cross-examination, as outlined by Mr. Olson, are systematically and contemptuously ignored.

For example, as part of "ongoing investigations," OTS attorneys routinely depose witnesses without 10 days' notice, without the opposing attorneys being present, and without even informing opposing counsel of the deposition. Should a federal judge attempt to intercede claiming that the ex parte deposition is outside the bounds of civil procedure, the OTS claims that the deposition is part of an ongoing investigation and is outside the federal judge's jurisdiction, as it is an administrative matter subject only to administrative law. Yet the deposition can be, and usually is, admitted as evidence in federal court.

In the unlikely event that the administrative judge (who has been assigned, perversely enough, by the very agency performing this deposition) should attempt to intercede and stop the deposition, the OTS then claims that the particular deposition in question is part of a distinct investigation not related to the specific case currently before the administrative judge and therefore outside of his jurisdiction. But again the administrative judge cannot keep the transcript from being admitted subsequently as evidence. The defendant has no recourse, as there is no judge with jurisdiction over the deposition until the administrative agency bringing the case decides to assign one. This example merely scratches the surface of the abuses committed in the name of discovery by government prosecutors.

Without diminishing Mr. Olson's very astute observation that the discovery process is abused by private attorneys, it is imperative to be aware of similar abuses committed by attorneys employed by the government. We live in troubling times. As our society becomes increasingly litigious and as the leviathan of government bureaucracy becomes more pervasive and powerful, we can look forward to more and more intrusions into our privacy, not just by contingency fee-hungry claims attorneys, but also by glory-seeking administrative lawyers attempting to advance their careers at the expense of private citizens unjustly accused. As ugly as it may be to watch private-sector attorneys bending the rules of civil procedure and breaking outright standards of propriety in order to pursue private profit, it is significantly uglier to witness government attorneys utilizing the same dubious methods of conduct (and worse) in order to pursue questionable political ends. Greed may be dangerous, but as Mr. Olson implies, tyranny is deadly.

D.J. Paul
Providence, RI

Walter Olson is correct that modern legal discovery procedures give lawyers much too much power to demand the attention and cooperation of others. I am less concerned with protecting secrets or privacy interests, however, than I am that these procedures invite, facilitate, and extend litigation, the plague of our society.

The essential, destructive contradiction of our society is not, as Marx thought, that capitalists increasingly exploit workers, but that we allow lawyers—all of our judges and often a majority of our legislators—to make the law, and they are inevitably hooked on the stuff. We must remember that the more numerous and badly crafted laws become—making everyone a violator—the better for the lawyers.

The 1938 major procedural changes meant to simplify litigation have, in fact, served to greatly increase it. We should return to the hard-headed common law system that required claims to be stated with specificity and in detail; a huge improvement would be to abolish the recently invented "class action." Over three quarters of a million lawyers will scream, but perhaps through retraining they can be redirected into some socially useful occupation, such as coal mining.

The upside is that our society is very easy to improve: Just repeal most laws passed in the last 50 years, and assuredly, all of us (except the lawyers) will be better off.

Lino A. Graglia
School of Law
University of Texas
Austin, TX

To reform the horrible abuses of the legal discovery procedure, it would be helpful if a clear-thinking judge said: "Selected incidents can never prove a pattern of behavior. Counsel seeking to do so must not only screen all the evidence for the sought-after behavior, but must screen equally diligently for its opposite and present both in order to show the sought-for behavior constitutes a pattern rather than mere inconsistency, which is never punishable. Moreover, it is neither just nor acceptable to burden your opponent with this duty."

James D. Thackrey
Santa Ana, CA

Walter Olson's article was entertaining, but not really news. Clients, lawyers, and judges have complained about discovery abuse for at least a decade, and their complaints have borne fruit. For example, many federal district courts have adopted local rules limiting the number of interrogatories a lawyer may propound. (Local Rule 5.D of the U.S. District Court for the Southern District of Texas permits "[n]o more than thirty interrogatories (counting subparts)" without a judge's permission.)

Judges have also experimented with a variety of techniques, including court-annexed arbitration and summary jury trials, that avoid full-blown litigation and reduce expense. More impressively, at the end of last year, Congress enacted the Judicial Improvements Act of 1990, which anticipates sweeping changes in the manner of discovery practice in all federal courts. The act requires all district courts to adopt programs designed to reduce the expense and delay of litigation, and identifies reform of the discovery process as a primary concern. The act also provides for the creation of advisory groups throughout the country to contribute to the reform effort. Perhaps Mr. Olson could find a group in his area to join.

Mr. Olson's article contains a good deal of hyperbole as well. There is, of course, nothing wrong in focusing exclusively on examples of abuse when writing for a popular magazine, but when advancing a serious claim that the legal system stands in need of reform one must recognize the good as well as the bad.

And there is a lot of good. Leo Jordan, associate general counsel for State Farm Insurance Co. (an organization likely to favor stricter discovery rules), recently reported in The Judges' Journal (a publication whose readers hold the same view) that "to [his] surprise" a survey conducted by his company's research arm "pointed out that the [discovery] system works and is abused only infrequently." The study also found "increasing judicial sanctions for discovery abuse." Apparently, judges are becoming increasingly intolerant of lawyers who propound discovery requests merely for the sake of vexing the other side.

Some of Mr. Olson's objections are directed (perhaps quite rightly) at this country's substantive laws, rather than at the procedural system in which those laws are enforced. When Mr. Olson pleads the case of Sears, which was ordered to bear the considerable expense of searching through thousands or millions of customer complaints to find the few relevant ones, the object of his scorn is probably the law of torts, under which Sears can be held liable for selling the flammable pajamas that injured the plaintiff. It may not make sense to have a tort system that charges Sears with the duty to assess the safety of each of the hundreds of thousands of products it sells. But we have such a system, and it is no complaint against the procedural system to say that it helps people vindicate their existing legal rights. That is what a procedural system is supposed to do.

The deep problems with the discovery process have more to do with our modem legal culture—a culture in which firms do battle with firms and individual lawyers may neither matter nor expect to see each other again in a subsequent case—than with the rules of civil practice. Any discovery system that gives parties some freedom to gather information will be abused by lawyers who lack incentives to cooperate with the opposing side. I'm told that in the old days when members of the bar dealt with each other frequently, the temptation to do in one's adversary by underhanded means was generally kept in check, for the same reasons that lead businesspersons to cooperate with each other most of the time. Now that law is a big, anonymous business, cooperation will be difficult to encourage, no matter how we design the rules, and the incentives to abuse one's adversary will be strong.

Lastly, I'm not sure that libertarian principles support the sweeping protection for privacy Mr. Olson desires. I agree that privacy should be the rule in cases where people act in ways that affect primarily themselves. But civil lawsuits routinely involve acts that have wider effects. Do libertarian principles entitle a person who harms another to keep secret information that may be vital to the victim's case? I can't see why.

It is true that a plaintiff should not be free to pry into every nook and cranny of a defendant's life, and Mr. Olson's examples show that plaintiffs often go too far. But the need for relevant information (a category broader than admissible evidence) is clear and, as far as I can tell, a practice that allows plaintiffs to gather relevant information, with suitable constraints on its use, would not violate libertarian principles even if it required defendants to bear a degree of inconvenience and expense.

People who harm others have to expect that they will occasionally be called to account and made to produce the information needed to establish the legality of their acts.

Charles Silver
School of Law
University of Texas
Austin, TX

Although stated hyperbolically, Walter Olson's article is essentially correct. Civil litigants are less protected than criminal defendants. The interesting questions to ask are: Why is this so? Is this defensible? What values does this different treatment embody? Should we care? Mr. Olson makes good points, and his thesis is one that has troubled me every time we march through the discovery portion of civil procedure.

Linda S. Mullenix
School of Law
University of Texas
Austin, TX

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