Torts, Courts and Attorneys General: Tort Litigation by States.

AuthorAnderson, William L.

State attorneys general resort to courts frequently. Civil enforcement actions are customary, and participation in criminal prosecutions is common. They are, and always have been, the kind of state proceedings entrusted to AGs. Among state officials, the AGs are uniquely capable of bringing actions of this sort on behalf of their constituents.

In recent years, however, state attorneys general have increasingly brought actions for which they are ill-equipped, occasionally acting contrary to the legislative and regulatory bodies that represent the same constituents. Relying largely on private contingency counsel, AGs are filing tort claims against companies and industries demanding that judges and juries award them money damages.

In tort litigation, attorneys general eschew the standards of conduct set by legislation and regulation and instead invoke nebulous theories of liability such as nuisance, negligence and product defect. They seek to have defendants judged according to vague notions of what conduct is "offensive" in the case of nuisance, or "unreasonable" in the case of negligence, or overly "risky" in the case of product liability. They even seek to punish defendants for conduct that is or was expressly authorized, or even compelled, by state law and regulations. They demand from juries both compensatory and punitive damages.

Such nebulous actions are ill-suited for the offices entrusted with enforcing state laws. In addition, the unseemly alliance of state attorneys general with plaintiff attorneys, coupled with the lure of large verdicts for state coffers, has produced a form of tort/product litigation that is largely unfair to defendants and that courts should rein in--and several already have, as discussed below.

Section I of this article provides an overview of the chief differences between regulation and tort litigation, which illustrate important advantages of the former and limitations on the latter. Section II is a brief summary of the nebulous tort theories that state attorneys general invoke. Section III presents numerous examples of recent tort cases brought by state AGs. Section IV offers some practical suggestions for counsel defending against such cases.

  1. Litigation versus Regulation

    Courts have important roles to play in deciding enforcement actions brought by states, meaning litigation that states file in order to compel compliance with legislative or regulatory standards. Judges can amplify or clarify or limit or even invalidate legislative and regulatory standards. To that extent, judges augment the work of regulators and legislators, and they usually pay great deference to that work. Juries typically do not play a role in enforcement actions.

    State attorneys general make very different use of judges and juries when they bring common law claims and seek money damages and even punitive damages. In these cases, they essentially pray for the courts, and especially juries, to apply vague common law notions rather than to enforce specific regulatory or statutory standards.

    The use of common law litigation by state attorneys general in this context, rather than rulemaking or legislating, is questionable if not objectionable for a host of reasons, not least because the litigation process is ill-suited to the task of determining and applying standards of conduct or providing remedies other than money damages.

    Three main features characterize the process by which states enact legislation and promulgate regulations: (1) an open and public comment period and hearings affording all interested parties an opportunity to participate and be heard; (2) substantive expertise among regulators and frequently legislative staff in the affected subject matter; and (3) a final product that provides clear and enforceable standards and directives which are broadly applicable. By contrast, litigation--especially litigation over common law claims--may be defined by the very absence of these three attributes.

    1. No Public Comment or Participation

      In rulemaking, a proposed standard is typically published for public review and comment, and stakeholders of all sorts are allowed to participate in the process. Usually, written comments are invited and made part of an official record. Open hearings are usually held where stakeholders can present views directly to decision-makers, typically regulators. As a result, standards generally reflect a range of interests, viewpoints, and considerations. Activists and industry advocates and everyone in between can be heard.

      Litigation, of course, is a form of dispute resolution involving just the parties before the court, the plaintiffs and the defendants. Other stakeholders can rarely be heard. And there is virtually never an open invitation for public comment. Amici can occasionally be heard, but that is rare and by no means assured.

    2. No Expertise in Science Among Judges or Jurors

      In the rulemaking process, the initial proposals, subsequent comments and debates, and the ultimate standards are often developed with insights by real experts, including specialists in such highly technical fields as pharmacology, public health, hydrogeology, toxicology, risk assessment, industrial operations, and social policy, not to mention in regulatory procedure. Most regulatory agencies have experts in these disciplines on staff, and many also engage outside experts for assistance. Agencies also have access to the full range of scientific literature on these subjects. Just as importantly, because these processes play out over the course of months and sometimes years, they have the time to spend assuring they gather all the data and science needed to inform a rational decision. As a result, standards should reflect sound science and a solid technical basis. Standards should also be protective of human health and welfare, as well as other public interests.

      By contrast, judges and juries generally have no expertise in any of the many scientific and technical disciplines that bear on decisions in litigation. The litigants may be experts in relevant fields, and they can hire experts to submit reports and testify. Judges can also call on independent experts, though that is rare. Ultimately, however, the decision in any case rests with judges trained in the law, not in the substantive disciplines that matter, or by lay jurors with no special training whatsoever.

    3. No Clear and Enforceable Standards or Guidelines

      The product of the rulemaking process is generally a specific standard or rule, or set of standards and rules. These are typically written by expert regulators and published for all to see. They can be applied in the field or the marketplace and can be understood and followed by the regulated community. As a result, standards should provide clear direction for all affected stakeholders, including regulators and businesses.

      Judicial opinions and judgments, by contrast, especially those based on common law claims, merely adjudicate the disputes between the parties to any given case. Judicial opinions can set normative standards that others might do well to follow lest they face similar litigation. But, just as the common law reflects broad and vague principles, likewise court decisions on common law claims merely build on nebulous principles that might or might not be followed in subsequent cases.

  2. Nebulous Common Law Tort Theories

    The common law is the body of general rules and doctrines derived from basic and ancient principles and customs, and thence from court rulings applying those principles and customs over the ages in cases involving specific parties. Common law is generally and vaguely rooted in the unwritten law of ancient England. Common law is divined and applied by judges for particular cases. It is distinguished from the enactments of legislatures and executive or administrative bodies, which are applied to whole jurisdictions or large categories of people or entities. Common law is used in countries comprising only about one-third of the world's population, mainly in England and its former colonies, including the United States.

    Courts do not just apply common law, they create it, too. Frequently, courts will apply basic notions of equity and fairness to modern circumstances that were previously inconceivable. They use time-tested principles from the common law to define claims and fashion remedies for cyber torts, for example, or the private use of drones. Some judges even make up new principles and theories, and if those new theories are adopted by other courts also, the theories may attain the status of accepted doctrines forming part of the fabric of common law.

    Common law is an ever-evolving set of principles, adapted to the times, molded, shaped and sometimes created out of whole cloth by judges across the country. They hew to established principles. They show restraint. But they nonetheless make the common law, and that makes common law somewhat unpredictable.

    The common law of torts, in particular, is that body of common law principles and doctrines that apply in cases involving a breach of duty from one person or entity to another, not involving a contract or agreement. Perhaps the most amorphous of all torts is nuisance.

    1. Common Law Nuisance

      Common law definitions of nuisance vary widely and are extremely broad and general. According to Black's Law Dictionary, nuisance is "anything that unlawfully worketh hurt, inconvenience or damage." The definition is circular. A nuisance is anything that "unlawfully" causes damage. But a nuisance need not be against some written law such as a statute or regulation. Rather, a nuisance is unlawful if it is against the common law of nuisance. So, what is against the common law of nuisance is that which is against the common law of nuisance.

      One federal appellate court has described common law nuisance as an "all-purpose tort that encompasses a truly eclectic range of activities." (1) That court offered a list of...

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