Guns, Tobacco, Big Macs-and the Courts
The trigger was pulled by a friend, who had bought the gun on the street. Steven Fox, a Queens, New York, teenager, was badly injured by the .25-caliber bullet, which remains lodged in his head. The gun disappeared. Nobody knows who manufactured or sold it, or just how it found its way to Queens.
But we do not need to know. Even before the recent, murderous rampage at Columbine High School in Littleton, Colorado, a sizable majority of the public already agreed: too many guns, too freely sold. Our legislatures, however, have been at a loss. Although Congress has drawn the line at Uzis, it mostly ignores Berettas and Colts, and although it passed a “Gun-Free School Zones Act” in 1990, the Supreme Court struck down the law in 1995—the Constitution, the Court decided, confides the particulars of school safety to the states.1 The states, for their part, cannot seem to agree about guns at all. New York enacts strict laws, South Carolina does not. “The legislatures have not been capable, up to now, of dealing with these problems on any comprehensive basis,” remarked Judge Jack Weinstein in an interview after the Steven Fox trial.
So the necessary votes are being found, instead, in the courts. It was in Judge Weinstein’s courtroom that 25 gun manufacturers were sued by Steven Fox and his mother for “negligent marketing.” The plaintiffs alleged that manufacturers had flooded the market in Southern states where the gun laws are weak, and the guns then moved inexorably up Route 95, the “iron pipeline,” for illegal distribution in New York. Although the defendants replied that interstate gunrunning was not their responsibility but the federal government’s, the jury, after six days of deadlock, found fifteen manufacturers liable and nine responsible for one or more of three shootings. Based on a complex “market-share” apportionment, three manufacturers of .25-caliber handguns were ordered to pay 13 percent of the assessed damages—$500,000—to Steven Fox and his mother.
It seems a cheap enough price to pay for a bullet in the brain, and certainly not anything to bother a rich corporation. But the battle has just begun. In the next round, individual plaintiffs like Fox will be replaced by cities: Bridgeport, Chicago, New Orleans, Atlanta, and Miami. That such political entities can do far better as plaintiffs than individuals has been dramatically shown by tobacco litigation. Suits brought by New York, California, Pennsylvania, and other states have culminated in a 25-year, $206 billion settlement against tobacco manufacturers. Florida, Texas, Mississippi, and Minnesota, have settled separately for a total of $40 billion. The big news in tobacco litigation is not that Patricia Henley, a Marlboro smoker, was awarded $51.5 million by a San Francisco jury last February. It is that Bill Clinton has ordered Attorney General Janet Reno to win one for the rest of us, too.
Just how much fixing of a broken political process can judges like Jack Weinstein deliver? Far too much, in the opinion of some, who worry that after guns, the next targets in line will be chocolates, kitchen knives, or McDonald’s artery-clogging burgers. But it will not happen that way; not at all. Guns and tobacco are in real peril, but Big Macs are not. And that is the most alarming fact of all.
We used to tackle our poisons by quite different means. The campaign for Prohibition, for example, was launched in 1906. Over a decade passed before a two-thirds vote could be mustered in Congress for submission of the 18th Amendment to the states. By the time it was finally ratified in 1919, 33 states, covering 63 percent of the population, already had their own bans in place.
In the main, judges of that era were as cautious as the political branches were bold. Consider then-Judge Benjamin Cardozo’s concurrence in Palsgraf v. Long Island R. Company, which stands to this day as the best-known opinion in all of tort law.
On August 24, 1924, the platform of a Long Island Railroad station in Brooklyn was crowded with people. A man dashed through the crowd and jumped onto a train pulling out of the station. Pushing and pulling to help him board, a guard and a conductor knocked loose a parcel he was carrying. “Bomb Blast Injures 13 in Station Crowd,” the front page of the New York Times would report the next day. The parcel had contained fireworks, which were set off when they fell under the train’s wheels. The owner of the parcel was never identified.
Helen Palsgraf, a forty-year-old Brooklyn janitor, was surely the unluckiest victim: one of the fireworks hit a penny scale some distance down the platform and knocked it onto her. She developed a bad stammer several days later, apparently from the shock. She sued the railroad, and a jury awarded her $6,000. By a four-to-three vote, however, New York’s top court overturned the verdict, reasoning that the railroad could not have foreseen that this kind of carelessness by its employees would cause that kind of injury.
Cardozo’s concurrence took an even stricter tack. The railroad, he wrote, simply owed no “duty of care” to such an “unforeseeable” plaintiff. Tort litigants should be permitted to trace out causal chains only so far—not far enough to track a push, a parcel, fireworks, a train’s wheels, and a penny scale to Helen Palsgraf.
Today, in Jack Weinstein’s courtroom, litigants track their pyrotechnics the length of Route 95. It is fair to say, moreover, that Judge Weinstein welcomes long stories, and the big crowds that go with them. In 1972—in a case involving children injured by blasting caps—he pretty much invented the “market-share” theory of liability, later relied upon in Fox’s case. The 1972 case involved thirteen children, six blasting-cap manufacturers (virtually the entire American industry), the manufacturers’ trade association, 230 claims, and a demand for over $200 million in damages. In 1984, an Agent Orange trial in Weinstein’s courtroom consolidated more than 600 separate suits against seven chemical companies—suits to resolve the claims of 2.4 million veterans, their wives, their children born and unborn, Australian and New Zealand veterans, and a few civilians. It culminated in a $180-million settlement.
What the Fox case adds, in a perfect complement to “market-share liability” at the back end, is “negligent marketing” at the front. Cases can henceforth be framed around an industry’s “marketing” coming and going. It is innovations like these that have set the legal stage for the mega-tort suits now coming of age: if suits by individuals typically yield settlements and verdicts of six or seven digits, class actions easily get you to eight or nine, and the state tobacco suits have pushed things up to twelve. No corporation keeps that kind of money in its checking account, so the twelve digits are to be paid off on the installment plan, decades into the future.
But, the shocked manufacturers of guns and cigarettes protest, we sell a lawful product. Apparently they do not grasp what “lawful” means. “Well, ump,” a batter once asked the legendary umpire Bill Klem, “is it a ball or a strike?” “It ain’t nothing ’til I call it,” Klem growled in reply. Judge Weinstein takes much the same view.
So he well may—for is this not what common-law judges have always done, deciding cases one by one, and making law as they go? But it is equally clear that baseball is not what it used to be. What has changed in the decades between Cardozo and Weinstein is not the strike zone; it is the game itself. It is as if the umpires had grown tired of just calling balls and strikes, and had set about adjudicating disputes among the fans. And not only the occasional altercation in the bleachers, but the comparative merits of Yankees and Braves fans themselves.
When Fiorello La Guardia, the mayor of New York (1934-45), went after slot machines, he did not summon his tort lawyers; he summoned his sledgehammer. Today, too, big-city mayors and state governors already possess broad power to police, regulate, tax, and ban. The President of the United States possesses the broadest power of all. He does not need Janet Reno, plus twelve more votes from a federal jury, before Washington can collect its due from Philip Morris. Washington already takes in 24 cents a pack, and legislation floating around last year would have pushed that sum to $1.34; Clinton himself has come back this year with a 55-cent proposal. Although Steven Fox cannot order federal authorities to stop gunrunning on Route 95, the man who rules Washington surely can, with a stroke of his pen.
Except that Bill Clinton does not rule Washington by pen stroke; nobody does. Nor does Miami rule Florida, Minnesota rule tobacco country in North Carolina, or Queens rule rednecks in Alabama. Wherever you may be sitting, whether on a federal bench in Brooklyn or in your pickup truck in Birmingham, legislatures always appear “not capable” (in Jack Weinstein’s words) of doing quite what you might like, even if you are a majority.
This holds true even for quite popular causes; we do not govern by plebiscite. There is a lot of anti-majoritarian friction in the political branches of our government, and it was put there on purpose. Single-issue groups have clout because strong, focused enthusiasm is supposed to count in our system of representative democracy. The legislative majority is always accommodating passionate, vocal minorities; the accommodation is what creates the majority, while it lasts.
Our old-fashioned political process is in fact surprisingly good at making pragmatic judgments about how far to push majority sentiment, and at deciding when wholesale “cures” of minority passions are going to entail higher social costs than hold-your-nose tolerance. Up till now, what representative democracy has told us is that Camels and Berettas still muster more support than cocaine and Uzis, that we can tax the Marlboro man 24 (federal) cents a pack and snuff him in public buildings but not in homes, that the federal government should leave a lot of discretion to the states (which can tax some more), and that, in policing Route 95 as much as we reasonably can, we should keep in mind the other porous borders, both here and abroad, that we have to attend to as well.
Up till now; but no longer. As New York has discovered, if you do not like where our society has so far come out on a given issue, you can have a take-charge judge glide over the friction of ordinary politics. Politics, after all, is fueled by money; it is under the sway of lobbyists and special interests; it is always subject to the baleful power of factions that are forever frustrating the popular will; and in its regional form it is always getting in the way of the national interest. None of that happens in Jack Weinstein’s courtroom.
Of course, others can locate their own take-charge judges, too, and have been known to do so. In 1962, an Alabama jury tried to impose damages on the manufacturer of a particularly noxious Yankee poison, the New York Times, which had published a civil-rights advertisement allegedly libeling an Alabama city commissioner. Luckily for the Times—which was, in those years, in quite precarious financial straits—the Supreme Court put a halt to such suits by means of a far-reaching interpretation of the First Amendment. More recently, Alabama courts have been notoriously eager to settle the score with Yankee banks and insurance companies. In 1996, it again took the Supreme Court to overturn a $2-million verdict against the car manufacturer BMW. An Alabama physician had sought damages for BMW’s nationwide practice of touching up paint nicks that occurred in transit before selling its cars as “new.”
Needless to say, no one physician, judge, or jury can single-handedly rid the nation of tobacco, guns, the libelous New York Times, or blemished BMW’s. A single Jack Weinstein can get a tort movement started, but to finish the job requires real people power. It will take a long, slow accumulation of six-to-seven digit verdicts. Or, alternatively, a short, fast accumulation of the nine-to-twelve digit kind.
And those are the cases now being filed. When David Kessler was running the federal Food and Drug Administration, he had neither the science nor the political authority to ban silicone implants; so he enlisted the trial bar. When then-Governor Lawton Chiles could not persuade the Florida legislature to raise the tax on tobacco, he persuaded his lawyers. Bill Clinton does not have the votes to take on big tobacco in Congress, so he goes to Janet Reno. The mega-tort lawsuit has become the roving hyena of populist politics.
To be sure, a trial, whether in Brooklyn or Birmingham, still provides a systematic, meticulously orchestrated presentation of evidence, under disciplined procedures and rules of order. But for all that, mega-tort cases cannot escape being essentially political.
To begin with, the plaintiffs filing them are political: chief executives of cities, states, or the nation. They choose their tort suits as carefully as they choose their running mates. And that is why guns and tobacco are in real trouble but McDonald’s is not. McDonald’s does get sued—it was sued not long ago for brewing its coffee too hot to be safely spilled in an elderly customer’s lap. But plaintiffs’ lawyers are politically too smart to try coffee-scald class actions, and mayors and attorneys general are not lining up to demand Medicare refunds for the burned laps of the elderly. People like Big Macs: if calls of this nature were made by national plebiscite, guns and tobacco would be thrown out of office by solid majorities, but Big Macs would be reelected by huge margins. What puts an enterprise in peril in the era of mega-tort may be the same thing that puts it in peril in the conventional political arena—doing something that a good solid majority of people really do not much like—but today, the peril for certain unpopular minorities is far greater in court.
More fundamentally, the mega-tort suits are political because very big suits cannot center on anything but very big issues. When a Marlboro smoker like Patricia Henley sues for her lung cancer, we can reasonably ask such questions as whether tobacco caused her specific cancer, and whether, when she decided to smoke, she understood the risk or was duped. But “consent” does not mean much when Minnesota sues for the state’s cost of treating sick smokers. And besides, if accounts really are going to be reckoned on a statewide scale, we would logically have to look at the rest of the ledger, too: the billions Minnesota saved, for example, by not paying pensions to smokers who died off young.
There is no reason to stop there. Guns, for example, sometimes make us more rather than less safe; that is why we arm our police and security guards. Permitting ordinary citizens to carry concealed weapons may have the same effect: one recent study argues that doing so reduces crime, especially violent crime aimed at women and minorities in high-crime urban areas.2 And if guns endanger us on the street, they may make us safer in our homes, or at least safer from strangers. As an equal-protection sovereign, Minnesota’s real interest is the aggregate safety of all its citizens, not just those who end up on the wrong side of the wrong gun.
As for smoking, tobacco lovers may not be able to justify their habit on grounds of self-defense, but many of them can sincerely testify to the pleasure they derive from it.3 As Peter L. Berger argued in these pages five years ago (“Furtive Smokers—and What They Tell Us About America,” June 1994), anti-smoking zealotry subordinates individual choice and preference to collective wisdom and will, the kind of political choice that in any other context we would associate more with Big Brother than with Uncle Sam. When the zealotry grips Washington, it subordinates state choice to federal dictate.
Even when some facts are quite clear—cigarettes cause lung cancer—it is never clear what follows from this politically, and in particular what change in policy will make things better rather than worse. Like it or not, America today is not a gun-free nation but one in which about 75 million people, about 40 percent of adults, already own collectively more than 200 million guns. It is not a smoke-free nation but one in which 25 percent of our fellow citizens are already hooked. It is also a nation in which things not sold at the 7-11 generally end up being sold in the after-hours club, the crack house, or on the street. Any honest inquiry should consider every way that guns or cigarettes affect not just the pursuit of cancer, mayhem, and misery but also the minority’s pursuit of safety and pleasure and the entire balance of power among individuals, states, and the federal government.
One certainly cannot cut through any of these debates with lawyerly logic. It may be obvious, for example, that the manufacture and marketing of guns were “but-for” causes of Steven Fox’s injury—but so were the manufacture of steel and the building of Route 95. Such “but-for” analyses rarely reveal much when applied to long causal chains that involve great numbers of people. The springs of human conduct are far too subtle and varied for that.
In short, the big questions are not the kind that can be resolved by the methodical, apolitical, often scientific inquiry we demand of the judicial process. Indeed, when they are brought to court, what people think about the resulting verdicts has nothing to do with the factual particulars. What people think simply tracks the opinion polls on those questions, and has everything to do with politics.
None of this will trouble those already cocksure they know exactly What Must Be Done. But what kind of trial is it in which right-thinking people know what the verdict ought to be before the proceeding even begins? In which a mountain of fact and detail is presented merely as scenery and decoration and in which the little facts do not matter because we are meant to appreciate the gravity of the big facts, to understand society’s larger priorities, to be loyal to a higher principle, to be dedicated to a greater cause?
It is a show trial.
In the early decades of this century, the Supreme Court invoked “due process” to strike down economic- and public-welfare laws. Lochner v. New York, decided in 1905, overturned a New York statute limiting the work week of New York bakers. Other rulings of the era permitted the use of unsanitary “shoddy” to stuff mattresses and struck down child-labor laws. If, in Palsgraf, Benjamin Cardozo did not think tort law should reach the Long Island Railroad, the Supreme Court did not think the New York legislature could regulate economic life at all.
Yet Palsgraf and Lochner could not be further apart. At its best, tort law has nothing to do with political currents; it is just the civil way of settling private disputes. Lochner, by contrast, threatened a wholesale takeover of political authority by the federal courts, under their unique mandate to interpret the Constitution. “Lochnerism” so infuriated political leaders that at one point Franklin D. Roosevelt proposed to expand the Court’s size so that he could pack it with new, anti-Locbner appointees. In the event, death and retirement created the room he needed, and the Court duly laid Lochner to rest.
With or without FDR, however, it is hard to believe that Lochnerism could have endured. The theory put the federal courts too sharply in conflict with the legislative branch on economic issues that just did not seem to implicate cherished freedoms at the heart of the Bill of Rights. The political pendulum was bound to swing back sooner or later, and it did.
In the decades after the demise of Lochner, Congress would delegate a great deal of its authority to executive-branch commissions and agencies. The Supreme Court resisted that transfer for a while, but never with much conviction. So the executive branch grew and grew, and inevitably the question then arose of how to police its most political abuses. The Independent Prosecutor was born. A few conservative curmudgeons—Justice Antonin Scalia most notably among them—protested at the time that we would live to regret this unconstitutional frolic, but people committed to good government paid him no mind. As with Lochner, however, a political reaction was bound to come eventually, and it finally did, when a constitutionally defective prosecutor took on a constitutionally elected President.
Now we have the mega-tort suits. Is there reason to expect that the normal political forces will reassert themselves down the line? Legally speaking, it would be easy for a legislature to lower the curtain on the mega-tort—just pass a law, and the thing is done. But politically speaking, legislatures have almost no incentive to do it. These suits are politically vetted from the get-go; they do not go after the majority’s will, only the minority’s. Therefore, although there is bound to be a political reaction of some kind, one is hard-put to see how it can amount to much.
The gun industry, for example, is now desperately lobbying for state laws to curb suits by cities. Conceivably, candidates could run for state or national office promising to appoint “strict constructionists” of the tort system, and Congress could even enact laws to stop mega-tort suits nationwide. But none of this is likely to happen.
For one thing, if passionate political minorities were in the past able to block legislation aimed at tobacco and guns, the majorities that already favor curbing these industries can certainly block laws aimed at protecting them. And for another thing, there is the role of money—huge money.
Each one of a dozen or more tobacco lawyers will soon collect more money than Bill Clinton has spent on all his political campaigns combined. Inevitably, some healthy share of the take will get channeled back to candidates like Clinton who are committed to expanding the mega-tort still further. A state attorney general eyeing his next campaign for Senator or Governor can give his own political fortunes a boost by bringing home a billion or two from an out-of-state industry, and sharing 30 percent with prominent citizens back home. In states where judges are elected, a chunk of the mega-tort take will inevitably flow to campaigns for the judiciary.
We should not want political controversies to die this way. Political controversy is what keeps a constitutional democracy robust and alive. Yes, legislatures in the past have struck messy, imperfect compromises on guns and tobacco. But to tar those outcomes as a failure of representative government is to reject the political system itself. Our representative democracy is supposed to cut messy, unsatisfactory deals on all the irreducibly political questions of a sprawling, heterogeneous society like ours, and cutting such deals does more good than reformists-in-a-hurry think.
A mere fourteen years after we had amended our Constitution to ban alcohol, we amended it again. In 1932, the Democratic party adopted a platform calling for repeal. FDR’s new Congress adopted a resolution proposing the 21st Amendment, to repeal the 18th. Ten months later, Utah (of all places) was the 36th state to ratify, and the repeal of Prohibition was achieved. Believe what you will about demon rum or (if you prefer) the cup that cheers: both the 18th Amendment and the 21st were politically healthy things. A national consensus was forged, both coming and going.
Today, by contrast, there is reason to fear that we have started a long, slow spiral into a political black hole. Once the mega-tort gets established in the courts, it will be all but impossible to take it back out. The courts are a political dead end—not surprisingly, since they are not supposed to be political at all. Lochnerism tried to kill the entire political agenda of what would become the New Deal. Happily, it failed. Now, the mega-tort judges are at it again. But this time they are swimming downstream, and they may very well succeed.
1 United States v. Lopez. The ruling overturned the conviction of Alfonso Lopez, a 12th-grade student, who on March 10, 1992, had brought a concealed .38 caliber handgun and five bullets to Edison High School in San Antonio, Texas.
2 More Guns, Less Crime: Understanding Crime and Gun Control Laws by John R. Lott, Jr. (University of Chicago Press, 1998).
3 See Cigarettes are Sublime by Richard Klein (Duke University Press, 1993).