Professor Donald Gifford has nothing against litigation. As a practicing lawyer, he often represented victims in personal injury actions. Today, his teaching and scholarly focus at the School of Law is mass products torts - legal actions alleging harm caused by products such as asbestos, cigarettes, lead pigment, and handguns.
But in a new book, Gifford argues that when states and municipalities file lawsuits against product manufacturers, in an attempt to solve societal health problems caused by products such as cigarettes and lead paint, the governments expect too much from our courts. Suing the Tobacco and Lead Pigment Industries (University of Michigan Press, 2010) is Gifford's call to have the governments address public health matters directly through legislation and regulation, and not through the courts.
When Mississippi became the first state to sue the tobacco industry in 1994, its attorney general described the action as "the most important public health litigation ever in history." Fifteen years later, Gifford reports that most public health experts regard the outcome of the tobacco litigation as a public health failure. When a Rhode Island jury found lead pigment manufacturers liable in February 2006, an advocate for lead poisoned children exclaimed, "Sometimes in this not so friendly world, the Goliaths are defeated and justice triumphs." But a couple of years later, the state supreme court threw out the jury verdict.
This new form of state "parens patriae" litigation, Gifford argues, is driven by mass plaintiffs' attorneys who often profit handsomely, to the tune of thousands of dollars per hour, when state governments prevail. Perhaps more troubling, he says, parens patriae cases distort the constitutional allocation of powers by allowing state attorneys general to pursue solutions in court that state constitutions allocate to legislatures.
From 1992 to 1994, Gifford was chairman of Maryland's Lead Poisoning Commission, which produced a statute that has helped drive down lead-based paint poisoning in Maryland. The law forces property owners to remedy the deteriorating housing conditions that are responsible for most cases of childhood lead poisoning. A decade later, as a consultant to the paint and coatings industry, Gifford worked with industry and victims' advocates to develop laws and standards in several other states to solve lead poisoning problems. It is a laborious process that requires compromise among competing interests, but he is convinced it is the best path. (Among those with whom he worked were President Barack Obama, at that time a young state legislative committee chair, and Secretary of State Hillary Rodham Clinton, then a U.S. senator.)
"Solutions to tobacco-related illnesses and childhood lead poisoning do exist," Gifford writes. "But when it comes to finding these solutions, when we turn to the courts, we are looking in all the wrong places."