Government by Lawsuit . . .

The Washington Post Company
Sunday , April 2, 2000

For those who favor robust federal regulation of tobacco and strict controls on handguns, as we do, it is tempting to cheer any use of the courts to circumvent Congress' unwillingness to implement common-sense policy. Litigation has caused tobacco companies to improve the way they operate. A recent deal with gun maker Smith & Wesson is, in substance, similarly in the public interest.

But the process is worrisome--prone to abuse. Filing lawsuits is generally speaking a bad way to make policy. The government has nearly unlimited resources; should it use them, in court, against law-abiding companies that it happens to dislike? Even a weak case can be used to bully those who lack the resources to fight to the end. So where is the line between legitimate governance and extortion?

The tobacco case falls on the legitimate side of the line. The government has at least put its name on a complaint. Attorney General Janet Reno is politically accountable for that suit, which the industry is now asking the court to throw out. If she loses, Ms. Reno will have to answer for filing litigation the courts deemed frivolous. Moreover, the tobacco companies for decades misrepresented the state of their knowledge about the lethality of their products, engineered them to be addictive and marketed them to children. The government's argument that it has a cause of action under federal law remains untested, but it isn't laughable.

Against the gun makers, the government does not even claim to have its own cause of action. Rather it is organizing a suit by local authorities and then stepping into negotiations to push its policies as a basis for settlement. If this is a legitimate strategy, it's hard to see why an anti-abortion administration, say, could not encourage litigation against drug companies marketing abortion-inducing drugs and then demand that those drugs be withdrawn as a condition of settlement. Abortion foes might cheer then as gun foes do now.

Federal lawsuits can redress unjust readings of the law, as in the civil rights era. Novel legal theories surely have a place in government litigation. But this is not a broad license to use suits or the threat of suits to get around democratic policymaking. To do so undermines the legislative branch, demeans the judicial and poses threats to the liberty of those who obey the law but fall out of official favor.

                                                                                           
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