Public Policy: Legal Muggings - gun control - suing manufacturers - Brief Article

National Review, April 17, 2000

THE federal government and several cities reached a deal with Smith & Wesson, the gunmaker: The company will restrict the distribution of its products; the feds and the cities will drop their lawsuits against it. The deal will at best yield minimal improvements in public safety. Many of the restrictions on Smith & Wesson are superfluous, codifying standard industry practices; others make it harder to use guns for self-defense. Several provisions also impose burdens on other parties (such as gun sellers and buyers). Some of them, finally, would put Smith & Wesson's competitors at a disadvantage if generally adopted.

Similar criticisms could be made of other gun controls, such as the legislation proposed by New York's poll-mad Republican governor, George Pataki. But the method by which the Smith & Wesson deal was obtained is particularly noxious. Ever since the legal assault on the tobacco industry began to succeed, the use of lawsuits to achieve public-policy goals has become widespread. While its chief practitioners are liberals, this tactic even has some conservative support: At a recent Senate hearing, Republican Sam Brownback lent a sympathetic ear to a woman who is suing a video-game maker for having something to do with the fatal shooting of her son.

Here's what's wrong with making laws out of lawsuits-quite apart from the infringements on property rights and freedom of contract such lawsuits often entail:

It perverts the rule of law. It is bad enough that companies are held retroactively liable for selling products that nobody considered illegal at the time of sale. The litigation campaign is also lawless in spirit: Almost nobody really believes the novel legal theories used to justify this liability. The point, as several of the litigants have made clear, is not to win courtroom victories but to harass companies financially with multiple flimsy lawsuits. Either make a deal or-as HUD secretary Andrew Cuomo has threatened the gun industry-suffer "death by a thousand cuts." This is uncomfortably close to extortion.

It's corrupting. In these lawsuits, government officials usually deputize private parties-often prominent lawyers who have contributed to their campaigns-to represent the public against other private parties. Any government that initiates a lawsuit will have an incentive to squeeze more money from the defendants than the law requires. But the typical arrangement compounds this problem because the lawyers have an incentive not only to squeeze money from the defendants, but also to keep as much of it as they can for themselves and not their client governments. The government officials often make it easier for the lawyers by keeping the arrangements secret.

It's undemocratic. White House adviser Bruce Reed argues that litigation is necessary to break a "legislative stalemate." But when a legislature fails to take some action urged on it, it has decided that it opposes the recommendation or at least does not strongly support it. Either decision has as much legitimacy as the decision to act. Liberals claim that Congress has failed to regulate guns or tobacco because it is in the grip of special interests. They are mistaken: Congress has rejected sweeping regulations because millions of Americans oppose them. In any case, the Constitution does not permit the executive branch to go its own way because it suspects the legislature is incompetent or immoral.

These deals not only sidestep the legislatures; they also sidestep the courts. If a court had tried to impose the kind of restrictions on advertising that the tobacco companies "voluntarily" accepted, a First Amendment challenge would probably have succeeded. Deals keep opponents from ever having a clear opportunity to make their arguments.

The lawsuits are undemocratic in another way, too: They let a few state and local governments effectively set policies for the entire nation. If Idaho residents want to buy a certain type of gun, they should not be precluded from doing so because of a deal made between a gun company and the city of Los Angeles.

The trial lawyers are counting on the unpopularity of their immediate targets to make their campaign immune from criticism. But polls suggest that the public disapproves of the gun lawsuits by a robust margin. In the long run, Congress ought to reform the product-liability laws to deter legal harassment. In the interim, it should protect federalism and the freedom of interstate commerce by restricting the ability of states and localities to launch these lawsuits. Otherwise, it will become harder and harder to say that here, the people rule.