SHOOT, DON'T SMOKE: A Political and Legal Explanation For Why the Tobacco Industry Settled the Public Entity Lawsuits And the Gun Industry Has Not
Varnum, Ronald M.
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CitationSHOOT, DON'T SMOKE: A Political and Legal Explanation For Why the Tobacco Industry Settled the Public Entity Lawsuits And the Gun Industry Has Not (2005 Third Year Paper)
AbstractIn the 1990s, a series of lawsuits filed by states against the tobacco industry sought reimbursement for Medicaid expenses paid for health care provided to citizens who suffered health effects from smoking, relying upon theories of unjust enrichment and conspiracy. Four of the states first reached independent settlements with the tobacco companies, and then four of the largest tobacco companies entered into a master settlement agreement with the remaining forty-six states, agreeing to pay billions of dollars and to disband its political lobbying and research groups to avoid the lawsuits. The agreement was a stunning development, as merely four years of litigation had produced capitulation from an industry that had long been protected by Congress from the reach of administrative agencies seeking to regulate toxic or harmful substances. It prompted similar lawsuits against other industries, including suits by cities and counties around the country against gun manufacturers and distributors seeking reimbursement for public funds spent dealing with the effects of violent gun crime. However, so far the litigation has managed only superficial wounds to the gun industry and has not yielded any hint of a major settlement. This paper explores the reasons why the tobacco industry would agree to pay billions of dollars to avoid the state Medicaid lawsuits, while no similar deal seems likely in the gun cases. As the explanation relies a good deal on the differences in the politics of these two issues, some time is spent providing an historical assessment of the traditional politics of guns and tobacco. The paper identifies four critical factors that explain the different outcomes in the gun and tobacco lawsuits. First, the tobacco lawsuits had sufficient grounding in the law to survive early motions to dismiss, prompting more lawsuits and heightening the pressure on the industry rather quickly. Most of the gun lawsuits were dismissed rather quickly, reinforcing the industryâ€™s approach to fight each lawsuit on its own merits. Second, the tobacco lawsuits were helped by insider documents exposing deliberate manipulation by tobacco companies in misleading the public about the addictive nature of nicotine and the dangers of smoking, whereas in the gun lawsuits, the plaintiffs so far have been without any â€œsmoking gunsâ€ that would help their cause, either legally or politically. Third, the Food and Drug Administrationâ€™s attempt to regulate tobacco in the mid-1990s demonstrated the tobacco industryâ€™s vulnerability; no federal agency has been able to claim similar jurisdiction over the gun industry, while the National Rifle Association has remained extraordinarily powerful in protecting gun manufacturers. Finally, some state legislatures responded to the tobacco lawsuits by changing the legal rules to improve the chances for the state plaintiffs; yet almost the complete opposite has occurred in the gun context, where many states moved to ban outright such lawsuits. These differences reflect the interplay of law and politics in two powerful industries.
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