Regulation through litigation
Encyclopedia
Regulation through litigation refers to changes in society (particularly those that affect industries) brought about by litigation, rather than legislation
or regulation
.
Some critics of regulation through litigation cite the constitutional doctrine of separation of powers
, arguing that rules that govern society as a whole should be rooted solely in laws enacted by legislative bodies. By corollary, the judicial and executive branches should properly be limited in their powers with regard to the law: the judicial in interpreting the laws, and the executive in enforcing the laws. Critics of regulation through litigation include members of industry and public-service professions; some would argue that as potential defendants, their opposition is based more in self-interest than in policy concerns. Of particular concern to critics is the use of the attorney general office to make policy, especially when that policy contradicts the policy of the chief executive; for example, many criticized Mississippi Attorney General
Jim Hood
for his litigation against insurance
companies in the wake of Hurricane Katrina
on the grounds that it undid the efforts of Governor Haley Barbour
to improve the business environment in the state.http://www.pointoflaw.com/columns/archives/001699.php In another example, eight state attorneys general unsuccessfully sued utility companies in an attempt to force implementation of global warming
standards that the federal government has refused to adopt.http://www.pointoflaw.com/archives/001603.php
There are sometimes legislative efforts to prevent regulation through litigation. Rep. Rick Boucher
(D-VA) argued in support of a 2005 federal tort reform
that gave immunity to gun manufacturers in certain lawsuits because such lawsuits were "nothing more than thinly veiled attempts to circumvent the legislative process and achieve gun control through litigation"; reform supporters complained that (and the Pentagon
supported the bill on the grounds that) the plaintiffs were trying to "sue [gun manufacturers] out of existence" through forcing them to incur $250 million in legal defense expenses, while gun control
supporters argued that the legislation took away "...the right of victims to be able to have their day in court," that the bill gave unprecedented immunity to a single industry, and that the law was unconstitutional.http://www.latimes.com/news/nationworld/nation/la-102005guns_lat,0,794784.story
Some use the term "regulation through litigation" in a favorable sense. For example, some laws have "private attorney general
" provisions that permit individuals to file suit in court to vindicate important rights. Many laws for addressing consumer protection
, civil rights
and employment discrimination
provide incentives for the private enforcement of laws by allowing the prevailing party to recover a reasonable attorney's fee
.
Regulation through litigation may at times overlap with judicial activism
.
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
or regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
.
Some critics of regulation through litigation cite the constitutional doctrine of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, arguing that rules that govern society as a whole should be rooted solely in laws enacted by legislative bodies. By corollary, the judicial and executive branches should properly be limited in their powers with regard to the law: the judicial in interpreting the laws, and the executive in enforcing the laws. Critics of regulation through litigation include members of industry and public-service professions; some would argue that as potential defendants, their opposition is based more in self-interest than in policy concerns. Of particular concern to critics is the use of the attorney general office to make policy, especially when that policy contradicts the policy of the chief executive; for example, many criticized Mississippi Attorney General
Attorneys-General of Mississippi
The Attorney-General of Mississippi is the chief legal officer of the state and serves as the State's lawyer. Only the Attorney-General can bring or defend a lawsuit on behalf of the State....
Jim Hood
Jim Hood
James Matthew "Jim" Hood is the Attorney General of the U.S. state of Mississippi. A Democrat, he was elected in 2003, having defeated the Republican nominee Scott Newton. A former District Attorney, Hood succeeded Mike Moore....
for his litigation against insurance
Insurance
In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...
companies in the wake of Hurricane Katrina
Hurricane Katrina
Hurricane Katrina of the 2005 Atlantic hurricane season was a powerful Atlantic hurricane. It is the costliest natural disaster, as well as one of the five deadliest hurricanes, in the history of the United States. Among recorded Atlantic hurricanes, it was the sixth strongest overall...
on the grounds that it undid the efforts of Governor Haley Barbour
Haley Barbour
Haley Reeves Barbour is an American Republican politician currently serving as the 63rd Governor of Mississippi. He gained a national spotlight in August 2005 after Mississippi was hit by Hurricane Katrina. Barbour won re-election as Governor in 2007...
to improve the business environment in the state.http://www.pointoflaw.com/columns/archives/001699.php In another example, eight state attorneys general unsuccessfully sued utility companies in an attempt to force implementation of global warming
Global warming
Global warming refers to the rising average temperature of Earth's atmosphere and oceans and its projected continuation. In the last 100 years, Earth's average surface temperature increased by about with about two thirds of the increase occurring over just the last three decades...
standards that the federal government has refused to adopt.http://www.pointoflaw.com/archives/001603.php
There are sometimes legislative efforts to prevent regulation through litigation. Rep. Rick Boucher
Rick Boucher
Frederick Carlyle "Rick" Boucher is the former U.S. Representative for , serving from 1983 until 2011. He is a member of the Democratic Party.-Early life, education and career:...
(D-VA) argued in support of a 2005 federal tort reform
Tort reform
Tort reform refers to proposed changes in common law civil justice systems that would reduce tort litigation or damages. Tort actions are civil common law claims first created in the English commonwealth system as a non-legislative means for compensating wrongs and harm done by one party to...
that gave immunity to gun manufacturers in certain lawsuits because such lawsuits were "nothing more than thinly veiled attempts to circumvent the legislative process and achieve gun control through litigation"; reform supporters complained that (and the Pentagon
The Pentagon
The Pentagon is the headquarters of the United States Department of Defense, located in Arlington County, Virginia. As a symbol of the U.S. military, "the Pentagon" is often used metonymically to refer to the Department of Defense rather than the building itself.Designed by the American architect...
supported the bill on the grounds that) the plaintiffs were trying to "sue [gun manufacturers] out of existence" through forcing them to incur $250 million in legal defense expenses, while gun control
Gun control
Gun control is any law, policy, practice, or proposal designed to restrict or limit the possession, production, importation, shipment, sale, and/or use of guns or other firearms by private citizens...
supporters argued that the legislation took away "...the right of victims to be able to have their day in court," that the bill gave unprecedented immunity to a single industry, and that the law was unconstitutional.http://www.latimes.com/news/nationworld/nation/la-102005guns_lat,0,794784.story
Some use the term "regulation through litigation" in a favorable sense. For example, some laws have "private attorney general
Private attorney general
Private attorney general is an informal term usually used today in the United States to refer to a private party who brings a lawsuit considered to be in the public interest, i.e., benefiting the general public and not just the plaintiff. The person considered "private attorney general" is entitled...
" provisions that permit individuals to file suit in court to vindicate important rights. Many laws for addressing consumer protection
Consumer protection
Consumer protection laws designed to ensure fair trade competition and the free flow of truthful information in the marketplace. The laws are designed to prevent businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors and may provide additional...
, civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
and employment discrimination
Employment discrimination
Employment discrimination is discrimination in hiring, promotion, job assignment, termination, and compensation. It includes various types of harassment....
provide incentives for the private enforcement of laws by allowing the prevailing party to recover a reasonable attorney's fee
Attorney's fee
Attorney's fee is a chiefly United States term for compensation for legal services performed by an attorney for a client, in or out of court. It may be an hourly, flat-rate or contingent fee. Attorney fees are separate from fines, compensatory and punitive damages, and from court costs in a...
.
Regulation through litigation may at times overlap with judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
.
External links
- Walter OlsonWalter OlsonWalter K. Olson is an author and blogger who writes mostly about tort reform. Olson is a senior fellow of the Cato Institute, a libertarian think tank in Washington DC. Formerly Olson was associated with the Manhattan Institute in New York City...
, Point of Law, "Regulation through Litigation" - Robert ReichRobert ReichRobert Bernard Reich is an American political economist, professor, author, and political commentator. He served in the administrations of Presidents Gerald Ford and Jimmy Carter and was Secretary of Labor under President Bill Clinton from 1993 to 1997....
, USA TodayUSA TodayUSA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
, 11 February 1999, "Regulation is out, litigation is in" - American Tort Reform AssociationAmerican Tort Reform AssociationThe American Tort Reform Association , founded in 1986, is an organization that advocates for tort reform. Its membership consists of more than 300 businesses, corporations, municipalities, associations, and professional firms....
response to Reich - John FundJohn FundJohn H. Fund is an American political journalist and conservative columnist. Currently a senior editor of The American Spectator,...
and Martin Morse Wooster, The Dangers of Regulation through Litigation: The Alliance of Plaintiff's Lawyers and State Governments
Books
- W. Kip Viscusi, ed., Regulation Through Litigation, ISBN 0-8157-0609-X
- Victor Schwartz, Regulation through litigation has begun: What you can do to stop it, ISBN 0-937299-89-8