by Donald G. Gifford. Ann Arbor: University of Michigan Press, 2010. 318pp. Cloth. $75.00. ISBN: 9780472117147. eBook format. $75.00. ISBN: 9780472021864.
Reviewed by Jeb Barnes, Associate Professor, University of Southern California, Department of Political Science. E-mail: barnesj [at] usc.edu.
This book provides a pointed critique of parens patriae litigation – mass tort suits filed by states and municipalities on behalf of citizens against manufacturers of products that have caused public health problems – against the tobacco and lead paint industries. It is crisply written and packed with valuable insights about the evolution of mass tort litigation as a policy-making tool. As such, it deserves a wide audience and a place on bookshelves next to the work of a long line of distinguished scholars, including Donald Horowitz (1977), Lon Fuller (1978), Shep Melnick (1983), Peter Schuck (1986), Jeremy Rabkin (1989), Gerald Rosenberg (1991), Robert Kagan (2001), Ross Sandler and David Schoenbrod (2003), Martha Derthick (2005), Gordon Silverstein (2009) and many others, who question the political wisdom of relying on litigation as a means to regulate complex, multifaceted public policy problems.
The book has many strengths and a discussion of a few should give a flavor of the analysis. Above all, it provides an exemplary overview of the transformation of tort law from an individual private remedy designed to assign individual blame for harms into a collective public remedy used by attorneys general to regulate – or, more accurately, attempt to re-regulate – public health problems. Gifford’s discussion is more than just a chronological review of familiar cases. He proceeds thematically, explaining how intellectual developments in the field of tort law helped set the stage for the ongoing evolution of modern mass torts. So, for example, Gifford explains how law and economics scholars in the 1970s, like Guido Calibresi, began to re-frame the central goals of tort as providing compensation and efficiently spreading and avoiding costs. With characteristic clarity, Gifford notes that “Calibresi . . . focused on objectives related to the victim (loss distribution or compensation) and to the injurer (loss avoidance or deterrence) that are not intrinsically linked” (p.56). De-linking plaintiffs’ harms from the defendants’ specific actions, in turn, becomes critical for the emergence of mass torts involving products like asbestos and lead paint, where harms occur over long periods of time and are cumulative so that it is virtually impossible to ascertain which manufacturer supplied the toxic materials or when exposure reached a tipping point and caused irreparable harm. Although this story may be familiar to tort law scholars, Gifford’s lucid treatment makes these developments broadly accessible.
Another strong point of Gifford’s analysis lies in how it frames the [*667] assessment of parens patriae litigation. Far too often, scholars of the American welfare state ignore the courts and concentrate on administrative programs, whereas law scholars concentrate on doctrinal issues. Meanwhile, public law scholars – especially in political science – tend to focus narrowly on judicial behavior, seeking to explain the determinants of judicial voting patterns, especially the votes of Supreme Court justices. Although these topics are surely important, they tend to detach the study of litigation and judicial decision-making from ongoing political and policy-making processes, which is often problematic in an age when courts and litigation have deeply penetrated into nearly every nook and cranny of American politics, including elections, agency decision-making, and even foreign policy (Kagan 2001; Barnes 2007; Silverstein 2009).
Gifford’s book offers a refreshing contrast to these types of narrow, specialized accounts by squarely embedding the analysis of parens patriae litigation in a broader discussion of public health regulation. The effect of this gestalt switch is two-fold. First, it brings the study of law and litigation into the heart of the study of public policy, in general, and public health policy, in particular, forcing us to integrate legal, political and policy analysis. Second, it roots our assessment of judicial policy-making in an examination of alternative institutional responses to the underlying problem. This framework has clear advantages in evaluating policy-making in a system of “separated institutions sharing powers” (Neustadt 1990, p.34), which are often missed by those who study litigation and judicial decision-making in isolation.
The discussion of institutional choice drives the book’s strong normative critique of the tobacco and lead paint litigation. Put simply, Gifford argues that it is one thing for courts to step in when the elected branches are unwilling to act, but it is quite another for attorneys general to use litigation to re-write existing regulation. Gifford explains as follows: “[a]s imperfect as the functioning of Congress, federal agencies, and state legislatures may be in reality, … the attorney general’s appropriate role within the constitutional framework is not to replace the legislatively approved provisions regulating products with a regulatory scheme, whether resulting from settlement or judicial decree, which implements his own vision of social engineering” (pp.213-214). This critique gives the book its narrative punch and its potential appeal in the classroom as a foil to scholarship that defends judicial policy-making (e.g., McCann 1994; Mather 1998; Feeley and Rubin 1998; Peretti 1999).
Any thought-provoking work will raise questions as well as answer them and SUING THE TOBACCO AND LEAD PIGMENT INDUSTRIES is no exception. Despite its sharp normative critique, the book concedes that litigation has provided some meaningful policy benefits. Citing the work of Wendy Wagner (1999) and William Haltom and Michael McCann (2004) in particular, Gifford notes that the tobacco litigation enabled anti-smoking advocates to “reframe both the public’s perception of responsibility for tobacco-related diseases and the debate within the political processes” (p.191). The framing effect of litigation, Gifford contends, may have been even [*668] “stronger” in the lead paint cases and helped facilitate the passage of new legislation (pp.190-191).
At first blush, these concessions seem at odds with the book’s broader criticism of parens patriae litigation and raise nettlesome questions about how to weigh litigation’s policy-making benefits against its costs. A closer reading of Gifford’s case studies, however, implies a resolution to this potential tension. Scholars have long recognized that policy-making encompasses a number of steps, including mobilization, agenda setting, information gathering, rulemaking and implementation (see, e.g., Kingdon 2011). Each of these steps features its own dynamics and challenges. Issue framing typically is most central to mobilization and agenda setting, whereas many of the weaknesses of parens patriae litigation identified by Gifford relate to the implementation of existing rules created by legislatures and agencies. It is possible then that the critical institutional choice is not litigation versus legislation, as implicit in the book’s “traditional” conception of separation of power (pp.201, 204-205, 218), but choices among distinct divisions of labor among the branches throughout the policy-making process.
Building on this distinction, courts and litigation might be in a relatively good position to initiate the policy-making cycle by providing a forum and a set of institutional mechanisms, such as contingency fees and class action lawsuits, which can help overcome collective action problems, raise issues overlooked by the other branches, re-frame stale policy debates, and gather information on issues of fault. By contrast, legislatures and agencies might be in a better position to make comprehensive rules and implement policy based on the lessons learned from a period of case-by-case adjudication (e.g., McCann 1994; Rubin and Feeley 2003). Recognizing that competing branches of government may share power complicates the assessment of the proper use of parens patriae litigation, but it also acknowledges – consistent with Gifford’s balanced case studies – that the proper role of litigation may shift as we move from mobilization and agenda setting to rule creation and implementation.
It should be added that, as a social scientist, I had a standard list of methodological questions about the analysis. What is the relevant population of cases? What is the case selection strategy? Are these cases representative of the population? If not, do the expected biases strengthen or weaken the general critique? Are there more data on other forms of regulation applied to the same health policy issues, such as comparative policy analyzes that contrast the American response to tobacco and lead paint health risks with those of other industrialized democracies? Of course, these questions not detract from the book’s analysis whose primary goal is to describe and explain a complex policy phenomenon and its origins. They merely point to future research that might systematically compare the political and policy implications of the complex institutional choices underlying the deeply layered American welfare state; research that will surely build on (and greatly benefit from) the myriad of conceptual and descriptive insights of Gifford’s timely and cogent account. [*669]
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© Copyright 2010 by the author, Jeb Barnes.