Wednesday, October 3, 2007
For those interested in tobacco litigation, two new papers have been posted on SSRN from opposite ends of the political-litigation spectrum. Although they speak to different issues and do not cite each other, they present wildly divergent perspectives on tobacco litigation and even criticize each other's institutional affiliations.
Bootleggers, Baptists and Televangelists: Regulating Tobacco by Litigation, by Bruce Yandle, Joseph Rotondi, Andrew Morriss, and Andrew Dorchak (three of whom are associated with the Mercatus Center at George Mason University), argues that in the tobacco litigation, plaintiffs' attorneys and state attorneys general established alliances with other players that had a pernicious effect and, according to the Mercatus Center summary of the paper, "creat[ed] an unaccountable group whose activities undermine core principles of the Anglo-American legal system." Here's the abstract from SSRN:
The "bootleggers and Baptists" public choice theory of regulation explains how durable regulatory bargains can arise from the tacit collaboration of a public-interest-minded interest group (the "Baptists") with an economic interest (the "bootleggers"). Using the history of tobacco regulation, this Article extends the bootleggers and Baptists theory of regulation to incorporate the role of policy entrepreneurs like the state attorneys general and private trial lawyers who joined forces to regulate tobacco by litigation. We denominate these actors "televangelists" and demonstrate that they play a pernicious role in regulation.
The Article begins by showing how tobacco regulation through the 1980s fit the traditional bootleggers and Baptists public choice model. It then explores the circumstances that made it possible for the emergence of the televangelists as a regulatory partner that the bootleggers would prefer. The Article then criticizes televangelist-bootlegger bargains as likely to result in substantial wealth transfers from large, unorganized groups to the coalition partners. It also shows how televangelist-bootlegger coalitions are more pernicious than bootlegger-Baptist coalitions. Finally, it concludes with suggestions for how to make televangelist-bootlegger coalitions less durable.
Tobacco Industry Use of Judicial Seminars to Influence Rulings in Products Liability Litigation, Tobacco Control (2006), by Lissy Friedman of the Tobacco Control Resource Center at Northeastern Law School, charges judges with participation in biased seminars funded by the tobacco industry. In the paper, Friedman criticizes George Mason as "one of the main purveyors of judicial seminars with a pro-business slant." (Turnabout: the Bootleggers paper by Yandle et al., in passing, criticizes the role of Northeastern and Prof. Richard Daynard as "televangelists" for tobacco litigation and regulation). Here's Friedman's abstract:
Objectives: This paper examines the tobacco industry's efforts to influence litigation by sponsoring judicial seminars.
Methods: Thousands of internal tobacco documents were examined, including memos, reports, presentations, and newsletters. Connections to outside organisations were corroborated by examining tobacco industry financial records, budgets, and letters pledging funds. Facts about outside organisations were triangulated through examining their websites and publicly-filed financial records, and verifying facts through their representatives' statements in newspaper and law review articles.
Results: There are direct financial ties between the tobacco industry and groups that organise judicial seminars in an effort to influence jurisprudence, and judges who attend these seminars may be breaching judicial ethics either by not inquiring about the source of funding or by ignoring funding by potential litigants.
Conclusions: The tobacco industry's attempts to clandestinely influence judges' decisions in cases to which they are a party endangers the integrity of the judiciary.