In lieu of an abstract, here is a brief excerpt of the content:

The ends did not justify the means. The Master Settlement Agreement, a de facto form of national legislation, did not offer an effective tobacco control strategy. It is not surprising, given those who negotiated it, that what it primarily did offer was dollars. The plaintiffs’ attorneys who represented the states and were among those who negotiated on their behalf ended up obscenely wealthy. States, many of them short of cash as a result of strong political opposition to taxes, solved their budgetary problems, at least temporarily, at the expense of addicted smokers. A settlement couched in terms of the states receiving billions of dollars and restrictions on the ability of tobacco manufacturers to promote and advertise their products to youth, coupled with claims that the evil tobacco manufacturers had been forced to pay for their wrongdoing, had popular political appeal. It is no accident that the abbreviation AG used for “attorney general” is sometimes said to stand for “aspiring governor.” The tobacco companies certainly bene‹ted from the MSA and thrived in its aftermath. Manufacturers and their counsel will almost always know more about their industry and how to devise negotiated agreements that appear to regulate but in fact appease. In short, all those present at the bargaining table did well. The public fared less well. None of these in›uences is unique to the tobacco litigation. Instead, each of them will likely recur in the settlement of most, if not all, parens patriae actions seeking resolution of product-caused public health problems. Some will claim that the fault in the tobacco litigation remains with a Congress that is too beholden to manufacturers’ lobbying and campaign contributions. That explanation suf‹ces for the failure of the original Global Settlement Agreement to be legislatively implemented. It does not, however, explain the shortcomings of the Master Settlement Agreement as a national blueprint for tobacco control and prevention. That debacle, instead , lies at the hands of a closed negotiating process that predictably served the interests of those directly involved, while it sold short the public interest. Yet plaintiffs’ lawyers and state attorneys general continued to promote parens patriae litigation as a means to force product manufacturers to the bargaining table in order to impose alternative regulatory frameworks. the judicial decree as a solution for public health problems: rhode island’s proposed lead nuisance abatement plan I now turn to a description of the State of Rhode Island’s proposed remedial plan in the lead pigment litigation. As noted previously, Judge SilverDo Litigation Remedies Cure Public Health Problems? 185 stein had made it clear that his ultimate remedial decree likely would closely track the state’s proposal. Although it obviously is impossible to report the success or failure of any judicial plan that might have been adopted if the Rhode Island Supreme Court had not reversed the trial court judgment in favor of the state, a mere summary of the attorney general’s proposal strongly suggests that a judicial decree resembling that proposal would have exceeded the institutional capacity of the court, as well as the appropriate functions of a court as they traditionally have been understood. The attorney general’s proposed abatement plan acknowledged that it was “impractical” to remove all lead paint from Rhode Island residences and schools,54 but it nevertheless called for an effort that would have required lead remediation in approximately 240,000 Rhode Island residences and 758 schools and child care centers,55 at an estimated total cost to the defendants—and presumably their insurers—of more than $2.4 billion.56 The plan called for more than ten thousand trained and skilled workers to spend approximately 8,013,000 “labor days” over a period of several years to abate the nuisance.57 In all except a few instances, families who lived in the units where control of lead hazards was ongoing would have been relocated at the defendants’ expense.58 The plan acknowledged that abatement usually takes two to four weeks in a single-family unit and four to eight weeks in a building with three or more housing units, yet it boldly and optimistically (but probably unrealistically) predicted that those times could have been reduced to three and a half to ‹ve days and seven to ten days, respectively . Of course, if these projections were not met, the cost of abatement would have risen considerably. The plan anticipated that occupants would have been compensated for their meals and transportation during their displacements. Despite the fact that...

Share