A history and critique of public health litigation
In Suing the Tobacco and Lead Pigment Industries, legal scholar Donald G. Gifford recounts the transformation of tort litigation in response to the challenge posed by victims of 21st-century public health crises who seek compensation from the product manufacturers. Class action litigation promised a strategy for documenting collective harm, but an increasingly conservative judicial and political climate limited this strategy. Then, in 1995, Mississippi attorney general Mike Moore initiated a parens patriae action on behalf of the state against cigarette manufacturers. Forty-five other states soon filed public product liability actions, seeking both compensation for the funds spent on public health crises and the regulation of harmful products.
Gifford finds that courts, through their refusal to expand traditional tort claims, have resisted litigation as a solution to product-caused public health problems. Even if the government were to prevail, the remedy in such litigation is unlikely to be effective. Gifford warns, furthermore, that by shifting the powers to regulate products and to remediate public health problems from the legislature to the state attorney general, parens patriae litigation raises concerns about the appropriate allocation of powers among the branches of government.
Jacket image: iStockphoto © Alex Slobodkin
"The topic, how tort law evolved over time into a system that allowed, for a moment at least, a parens patriae form of massive litigation against corporations, is exceedingly interesting and important. Gifford's treatment of this topic is highly informative, engaging, insightful, very current, and wise."
—David Owen, Carolina Distinguished Professor of Law, and Director of Tort Law Studies, University of South Carolina
"The book is clearly organized and well written. It makes an excellent contribution to the existing academic literature on the doctrinal, policy, and institutional implications of mass tort litigation."
—Timothy D. Lytton, Angela and Albert Farone Distinguished Professor of Law, Albany Law School
"Professor Gifford provides a comprehensive analysis of the aggregative strategies utilized in the tobacco and lead paint litigation to offer a thoughtful and broad-ranging critique of the wisdom of relying on the judiciary for promotion of public health goals."
—Robert L. Rabin, A. Calder Mackay Professor of Law, Stanford Law School
"Don's well researched and thought-provoking effort to support this conclusion provides his audience with a readable and accessible understanding of the emergence of government-promoted tort litigation against product manufacturers. He gives us a framework for thinking about the earlier shortcomings of legislative as well as judicial efforts to address product-related public health harms as well as to ponder the appropriateness of attorneys general entering the fray despite the failure of other responses. He challenges us to come up with alternatives if we don't agree with his conclusion."
—Phoebe A. Haddon, Torts Prof Blog
"Professor Don Gifford has just written a terrific new book entitled Suing the Tobacco and Lead Pigment Industry: Government Litigation as Public Health Prescription. The book critically examines tort litigation brought by state and municipal governments against manufacturers whose products caused serious public health problems, such as tobacco-related diseases and childhood lead poisoning. It explores how state attorneys general, frustrated with legislative stasis on pressing public health problems, used tort law to achieve the same ends, usurping the power of policymakers and needlessly consuming judicial resources."
—Danielle Citron, Concurring Opinions
"Gifford (Univ of Maryland School of Law), the author of many important law review articles on the subject of litigation, is well qualified to prepare this book...the book is well written and contains an excellent bibliography."
—R. A. Carp, University of Houston
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