Many of the 165 or so lawyers and firms involved in the tobacco litigation have also participated in other mass torts and have grown used to fees that are “a little obscene.” But with a total settlement of $368.5 billion, even an overall 3 percent payout would run to $11 billion.
The tobacco lawsuits represent the demise of traditional negligence law. Consumers eschew responsibility for their own actions, liability lawyers search for deep pockets, legislators overturn standard notions of fault and state attorneys general prostitute their offices in search of publicity. Liability, no less than war, has become a continuation of politics by other means.
One tactic has been to create faux civil rights, the violation of which incurs liability for damages. Litigation then can become a tool of extortion. Companies that depend on responsible employees will naturally shun an alcoholic or drug addict– yet to do so now risks liability under the Americans With Disabilities Act. Walter Olson, author of “The Excuse Factory” (Free Press, 1997), points to rulings that a shoplifter was entitled to a job as a longshoreman because his thefts were minor, that a pilot deserved to be rehired after flying while drunk and that a wife‐beating firefighter qualified for reinstatement with back pay after claiming to be mentally ill.
Equally pernicious has been the steady subversion of more traditional liability rules, eliminating the necessity of both requiring the plaintiff to act responsibly and finding the defendant to be at fault. Cases involving irresponsible defendants — burglars and drunks, for instance — have passed into legend. Now, smokers join the pantheon of those to be protected from their own foolishness.
As the risk of large, meritless judgments has risen, so has the incentive to settle, rewarding plaintiffs who file suit merely in hopes of being bought off.
The pervasive belief in victimhood has led to excessive judgments even when defendants have only been slightly at fault. Juries act as if they were politicians, promiscuously giving away other people’s money. Many apparently believe that their job is not to assess fault and harm but to redistribute wealth. The law has become yet another program of the welfare state.