Monday, April 12, 2010
Let me begin by thanking those of you who responded to the March 30, 2010 posting of Torts colleague and my casebook co-author, Michael Rustad, in which he encouraged you to sign Professor Peter Joy’s letter to the Maryland legislature and others. This letter expressed deep concern over the General Assembly’s proposed budget amendments requiring a report on the cases, clients, and allocation of sources of funds in the University of Maryland Law School’s Environmental Law Clinic for the last two years and other information about clinics in public institutions. These proposed budget-linked amendments were in response to litigation undertaken by the Environmental Law Clinic against Perdue and farmers alleged to have violated Clean Water Act provisions. They were particularly troublesome because the reporting requests were linked to the release of funding for the University of Maryland Baltimore and the University System of Maryland.
This controversy ended in a compromise that removed the linkage of funds with any reporting and limited our obligation to report to the legislature only about publicly available information about cases (i.e., case names) and information about sources of funds that was not the subject of lawyer-client privilege. Moreover, the new reporting requirement was not attached to the budget but merely became part of the Conference report of the Conference Chair. The principal materials about the clinic and my formal statement about the controversy are available here.
We are pleased with this resolution and grateful for the support offered by law professors and leaders of legal education organizations (such as AALS and SALT), the president of the ABA, and other clinical and law faculty groups. Our faculty and students organized a teach-in and sent letters to the Chancellor of the System, the President of the University as well as the legislature and our alumni and other supporters also communicated with these decision makers in organized and individual responses. There were thoughtful articles generated by clinicians and other supporters that led to articles in the New York Times as well as local newspapers like the Baltimore Sun, the Washington Post, and other local and national media outlets like the Chronicle.
More than 450 law professors and over fifty deans signed Peter Joy’s letter and similar communications. While we are grateful for this outpouring and are mindful of the importance the impact it likely had on the legislators who began this inquiry, we view this local controversy against the background of a recent troublesome trend of legislative responses challenging the independence of clinic work and in light of the history of other similar legislative push back captured in a new book by Robert Kuehn who also offered us leadership and advice. I write this blog entry mindful of this real life example of political action that leaves me more skeptical than ever of local, legislatively derived resolution of extraordinarily complex social controversies that have substantial public interest.
I take this opportunity to share with you some thoughts about a newly released publication by one of University of Maryland’s legal scholars in Torts, Don Gifford. His book, Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription, (University of Michigan Press 2010), ISBN 978-0-472-11714-7, is also available as an e-book (ISBN 978-0-472-02186-4.) Don brings to this project his expertise as a scholar of mass products torts and his advocate’s work seeking stronger legislation to eliminate childhood lead poisoning, as chair of the Maryland Lead Poisoning Prevention Commission and as a consultant for the paint industry in a dozen or more states. Don Gifford reports that -- perhaps retrospectively -- among his memorable experiences as a legislative advocate occurred in 2003, when the legislation he proposed caught the interest of an impressive chair of an Illinois State Senate committee who a few years later would become President of the United States.
Professor Gifford has described his book as follows:
Suing the Tobacco and Lead Paint Industries explores parens patriae litigation by state governments against manufacturers of cigarettes, lead pigment, handguns and other products. Widespread public health problems caused by product exposure bedeviled courts for decades. Traditional tort doctrines, with their origins in nineteenth-century cases involving traumatic collision injuries, blocked the recovery of victims of tobacco-related illnesses and childhood lead poisoning. During the same period, regulatory authorities, influenced by business lobbyists, failed to protect the public. Public health advocates and state officials, therefore, greeted the arrival parens patriae litigation against product manufacturers in the 1990’s as an almost magical means of overcoming the legal obstacles that had prevented individuals from recovering for product-caused harms.
From the vantage point of fifteen years after the first parens patriae suits, Don Gifford offers a far different picture than seemed likely at the outset. Courts have been hostile to the expansion of traditional tort claims, at least for the present, foreclosing the opportunity for recovery for individual victims of product-related public health harms (and their families). Reviewing the settlement of state-generated suits against the tobacco industry, Professor Gifford finds they did little to address the underlying problem of harm-causing products; to the contrary, they served to promote economic benefits of the tobacco industry and secure their commercial longevity and strength. Moreover, the remedies sought in these settlements as well as in the judicial decrees developed in the first stages of lead litigation were not designed to provide substantial relief to the individual claimants injured by these harmful products.
Don Gifford finds troublesome the fact that parens patriae litigation relocates the power to craft meaningful relief for these public health problems engendered by products – which he characterizes as improper regulation of products. This relocation of power for Professor Gifford raises concerns about allocation of powers among coordinate branches and other constitutional concerns. He is also critical of some courts’ tendency to rely on common-law tort theories like public nuisance to tackle these product-caused public health problems. Ultimately, Don Gifford concludes that only the legislature can effectively and appropriately address product-caused public health problems.
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.
While I might agree that stare attorney generals lack competence to engage in the kind of complex regulatory-like undertaking to address the public health impact of products, I would have liked Professor Gifford to further explore alternative options to provide redress for individual victims in the future: courts addressing private suits with new theories and comprehensive federal administrative regulation supported by federal legislation. Neither alternative is explored in this book in part because Don assumes that the lesson learned from the massive asbestos litigation experience was that courts are ill equipped to resolve these kinds of disputes. By implication he accedes to the view that that the common law’s traditional tort limitations related to causation should be preserved.
I believe that the future may support a different view of product-related harms to individual victims, challenging these assumptions. Gifford distinguishes the court-focused resolution of school desegregation and prisons from the public nuisance-based claims that state attorneys general raise, emphasizing the constitutional foundations supporting those earlier suits. But could there emerge a similar public interest- based theory of liability that similarly supports committing to judicial resolution such large-scale social problems implicating the public health? One could imagine for example a human rights framework for addressing such claims. Like Guido Calabresi and others of the seventies and eighties young scholars today are drawing upon human rights analysis to address fundamental inequities in the distribution of economic wealth and resources for basic human survival and respect. Our students who are exposed to the teachings and writing of these scholars may construct new human rights-based claims and provide convincing arguments for courts of the future, less inclined to be bound by what Gifford admits are nineteenth century limitations on addressing twenty-first century public health problems.
Is it more likely that we might actually see a future state or federal legislature prepared to address the complex problem of products affecting the public health, linking administrative relief for victims with appropriate regulation? Gifford reminds us that James A. Henderson earlier observed that it is commonly accepted “in a representative democracy macro-economic regulation is accomplished by elected officials and their lawful delegates.” (p 200). But the fact is that neither state nor federal legislatures seem inclined to address these problems in a broad way, responsive to the needs of numerous individual tort victims or the public interest in addressing massive and expensive health effects of products. Indeed as Gifford confirms, state legislative agendas have been dominated by business interests bent on limiting, not expanding, tort claims and relief, through caps to pain and suffering, limitations on actions and immunity. Congress has gutted the grounds for class actions and is more likely to limit or eliminate claims rather than expand liability; it seems more bent on conflating victim rights with frivolous suits.
The fact is that without a better educated and informed citizenry to challenge the position that commercially supported economic development depends on reducing consumer protection, there is little hope for legislative response to the public health issues related to products. The predominant interest in limiting rather than expanding tort actions will continue to prevail.
Don Gifford’s new book is bound to provoke arguments about these and other possibilities that lie ahead.
Phoebe A. Haddon
Dean and Professor of Law
University of Maryland School of Law