This Article, Does Mass Product Tort Litigation Facilitate or Hinder Social Legislative Reform? A Comparative Study of Tobacco Regulation, analyzes the competing arguments for and against the use of tort litigation as a means of creating social reform. The value of current scholarship is limited because authors frequently allow their biases to influence their conclusions. Authors in favor of public health reform argue in favor of using tort litigation to create social reform, while authors in favor of a strict separation of powers approach argue against using tort litigation to create social reform. This Article, however, synthesizes the scholarly debate and tests the arguments for and against the use of tort litigation under a comparative analysis. The dramatically differing approaches to the regulation of social policy taken by the United States and the United Kingdom create the ability to compare and contrast the effectiveness of using litigation to create social policy verses relying on legislation to do the same.
This Article begins by examining the history of tobacco legislation and litigation in the United States and the United Kingdom. This Article then sets out three broad thematic categories, encompassing eleven specific arguments, in which scholars have debated the usefulness of litigation in creating social policy. This Article concludes that, in all three of the broad thematic categories, the arguments of public health advocates failed to show how using the judiciary can facilitate social reform. This Article shows that (1) the legislatures did not fail, and the use of the judiciary created undemocratic results in which only a select few were able to participate; (2) efforts of the judiciary to work with the legislature to pass reform measures only hindered such reform efforts; and (3) the deterrent effects of tort law were ineffective as tobacco companies failed to change their injury producing behaviors and were not forced to distribute the losses across all of society.
- comparative law
Available at: http://works.bepress.com/jeffrey_quinn/1/