Settlement Option

After the states managed to raise taxes and restrict advertising by suing the tobacco companies, critics observed that such litigation is really legislation in disguise. As such, they said, it undermines the separation of powers, short-circuits public debate, mocks the democratic process, and evades constitutional limits.

The Clinton administration has a carefully considered response to these objections: So what? In discussing their plans for a lawsuit that blames gun manufacturers for shootings in public housing projects, White House officials have dispensed with the pretense that they are seeking justice.

The New York Times matter-of-factly described the suit as "a move to force the firearms industry to adopt safer ways of making and selling weapons." According to the Chicago Tribune, the administration wants "to use the threat of $1 billion in possible damages to wring concessions from the industry on firearms distribution and marketing."

Bruce Reed, the president's domestic policy adviser, said the concessions should include limits on advertising, mandatory child safety locks for handguns, and new restrictions on sales. "If the Republican-controlled Congress wants to block sensible gun control," White House spokesman Joe Lockhart told The Washington Times, "we're going to find a way to [enact] it."

Miami-Dade Mayor Alex Penelas is similarly candid, referring to his county's lawsuit against gun makers, one of about 30 brought by local governments, as "cutting-edge legislation." Thus he freely admits that the attempt to obtain compensation for shooting-related costs–officially the heart of the gun lawsuits–is a charade.

Clearly, supporters of these lawsuits are not embarrassed to admit that they are trying to usurp the functions of the legislative branch. In their view, it has done a poor job of regulating the gun business, so it is time to make law by other means. But before we casually overturn our system of government, it's worth considering some of the things we might miss:

Openness. Congress and state legislatures debate bills publicly, and constituents have an opportunity to make their views known. When policy is made through deals to resolve lawsuits, the outcome is determined by people negotiating behind closed doors.

Accountability. Elected representatives must answer to the public for the way they vote. While litigation may involve elected officials such as mayors and attorneys general, responsibility is diffused by the opaque process of arriving at a settlement. If a deal with a few cities or states results in rules that affect the whole country, there is even less accountability.

Restraint. Through lawsuit settlements, crusaders can achieve restrictions that would be unconstitutional if imposed by statute. Among other things, they do not have to worry about the right to free speech or the right to keep and bear arms.

Predictability. If the losers in a legislative debate can always file a lawsuit to get what they want, business decisions will be fraught with uncertainty, especially since there's no telling which industry will be targeted next. It might even be one that supporters of the gun lawsuits like.

The mayors and the Clinton administration seem willing to live without these amenities, but some judges have more respect for the separation of powers. Two months ago, an Ohio judge ruled that Cincinnati had failed to state a cause of action in its gun lawsuit, and he rebuked the city for asking the court to "substitute its judgment for that of the legislature."

This month judges threw out the cases brought by Bridgeport, Connecticut, and Miami-Dade County. "When conceiving the complaint in this case," wrote Connecticut Superior Court Judge Robert McWeeny, "the plaintiffs must have envisioned…the dawning of a new age of litigation during which the gun industry, liquor industry and purveyors of 'junk' food would follow the tobacco industry in reimbursing government expenditures and submitting to judicial regulation."

Sorry, McWeeny said: You still have to show some legal basis for your suit. Miami-Dade County Circuit Court Judge Amy Dean likewise concluded that the county had not suffered any injury for which it could claim compensation.

These judges, with their annoying insistence that lawsuits comport with the law, instead of the other way around, are going to be a nuisance. Not to worry, though.

"This is not unlike what happened in the early stages of tobacco legislation," Miami-Dade Mayor Penelas told the Associated Press, calling the state litigation by its more accurate name. "And we know where that stands now."