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Tobacco Suit Is Latest
Abuse of the Rule of Law

By Robert H. Bork Copyright 1999 Wall Street Journal September 23, 1999

At least when the nation decided to end the "scourge" of alcohol, it had the political courage to ratify the 18th Amendment making Prohibition the law of the land.

Not so in these pusillanimous days. Now, as then, we are in the throes of a reform campaign waged with the vigor and self-righteousness of the bluenoses of old. This time their target is cigarettes, not whiskey. But our politicians no longer have the courage to legislate the end of what they condemn. Instead, they resort to lawsuits in an effort to end smoking by destroying the tobacco companies. The end, apparently, justifies any means, no matter how fraudulent.

States attorneys general have filed multibillion-dollar suits, allegedly to recover the medical expenses the states have incurred caring for victims of smoking. Never mind that the states have made far more money taxing cigarettes than they spend on medical care. If that were all, we could shrug, as we usually do, at the cynicism of our elected officials. Unfortunately, the damage runs deeper than the pillaging of shareholders in the tobacco companies.

The Department of Justice has just filed suit to recover the estimated $25 billion spent by federal, military and civilian insurers on smoking-related illnesses. This follows the settlement by tobacco companies with the states that calls for payment of more than $240 billion over 25 years. It is, unfortunately, to be expected that states would file such suits. (Not for nothing is the National Association of Attorneys General--NAAG for short--often called the National Association of Aspiring Governors.) But one might have hoped that the Justice Department, even under Janet Reno, was above such chicanery. Not so.

The real damage done by this noxious mixture of governmental greed and moralism is not to the tobacco companies' shareholders (they should have seen it coming and got out a long time ago) but to what we still, with increasing irony, call the rule of law.

The federal and the state suits suffer from the same defect, which ought to be fatal. All of these governments have known for more than 30 years that smoking creates health risks. Yet with that knowledge, they all permitted the sale of tobacco products and profited nicely, indeed enormously, from excise taxes. How can A tell B he may lawfully sell a product that A knows will cause injury and then sue B for the injury caused? Maybe the people injured could sue B, or A as well, but the one party that should have no cause of action, no complaint whatever, is A.

In the case of tobacco, the people who smoked and were harmed should have no cause of action either. Governmental and private organizations for decades have been pounding the message that smoking is deadly; cigarettes even come with an explicit government warning. Smokers are harassed in restaurants and expelled from their offices to catch pneumonia on the sidewalks. You cannot be sentient and unaware of the risks of smoking.

The lame answer to all of this is that nobody had a choice because smoking is addictive and the tobacco companies hid that fact from the government and from smokers. First and least important, tobacco is not addictive as medical science has long defined addiction. Second, everybody not in solitary confinement for the past four decades has known that using tobacco can be habit-forming.

The law is being deformed in other ways as well. Government suits against the tobacco companies are designed to remove the defenses that could, justifiably, be asserted against individual plaintiffs. While many juries are disinclined to relieve smokers of the consequences of their own informed choices, the government can try to avoid that defense by arguing that it assumed no risk; others did. But of course the government that authorized the sale of a known dangerous product did assume the risk that, under its own laws, it would have to pay when the risk became a fact. The Justice Department's suit would also render irrelevant smokers' lack of reliance upon any company statements as well as the various statutes of limitation.

If that were not enough, the government is charging a violation of the Racketeer Influenced and Corrupt Organizations law--a statute enacted to deal with organized crime--to force the tobacco companies to disgorge their "illicit profits." No wonder President Clinton thinks the companies will buckle and settle. Perhaps they ought to countersue to force the government to pay back its illicit taxes.

The Justice Department's complaint is only the most recent, and it will be by no means the last, effort to use litigation to bludgeon private firms in order to accomplish a prohibition that government could not muster the political support to legislate. Gun makers are beginning to face the same problem. Why not sue oil companies whose gasoline leads to traffic deaths, or fast-food chains whose products contribute to heart disease?

The only difference is political. If the product is sufficiently unpopular with the politically correct, massive public propaganda efforts will ultimately make lawsuits possible. That is what happened here. Yet even Ms. Janet Reno not long ago told a Senate committee that "the federal government does not have an independent cause of action." But the White House insisted, and the attorney general now says she has studied the matter carefully and--presto!--there is a cause of action after all.

Law has been warped for political purposes repeatedly, and never more so than in this administration. Is there no judge who will call this case what it is--an intellectual sham and a misuse of the courts to accomplish through litigation what cannot be won through legislation?

Robert H. Bork is a fellow at the American Enterprise Institute.