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Event Governance Civil Justice

Regulation By Litigation: The New Wave of Government-Sponsored Litigation

Tuesday June 1999

Opening Letter

With increasing frequency, lawsuits are being brought on behalf of state and local governmental entities seeking recovery for public harm allegedly suffered from the sale or use of some legal product. The suits have been identified by some as a new form of social engineering through the litigation process, and there has been much debate over whether they are attempts to resolve in court what are essentially legislative questions—tax rates and regulatory policies applicable to specific products. Tobacco, firearms, and lead paint are the most recent targets of such lawsuits, but some have suggested that suits involving alcohol, gambling, health care, and other products or services could well be on the horizon.

These novel suits raise difficult questions about how our society allocates resources, regulates commercial speech, and formulates rules of law. They also present important questions regarding how state or local political figures can become the engines for rules of tort law that may have been consistently defeated either in the legislature or when advanced by private litigants in the courts. Is this a useful balance in our political system or an abuse of power?

To respond to these questions The Manhattan Institute, The Federalist Society, and the U.S. Chamber of Commerce held a conference on the subject in June of 1999. This publication is an edited transcript of that conference. The conference sponsors want to thank Kim Kosman for her fine editing of the transcript. We note that the footnotes throughout the text are hers and are intended to provide the reader with information useful to understanding comments made by the conferees. We also wish to thank the conference panelists whose contributions made possible an informative, provocative, and revealing transcript.

Judyth W. Pendell, Director, Center for Legal Policy, The Manhattan Institute
Leonard Leo, Director, Lawyers Division, The Federalist Society
James Wootton, President, Institute for Legal Reform, U.S. Chamber of Commerce