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POLITICS - The Big Picture on Gun Lawsuits
Should liability protection be extended to all manufacturers?
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Business New Haven
9/6/1999
By: Laurence D. Cohen
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When I wear a blue suit, a blue shirt and a blue tie - all different shades of blue - my wife covers her eyes and calls me a clothing moron. I tell her to consider the "big picture": I have made a good-faith effort to color-coordinate my wardrobe, shades of blue be damned.
It's probably time for the gun manufacturers to trot out the big-picture defense, as they fight off legal assaults from various jurisdictions that seek to hold the manufacturers responsible for turning the nation into Dodge City.
The big-picture analysis of all this pending gun litigation would force us to look beyond the guns, look beyond the Second Amendment arguments.
The big picture on the gun issue isn't about the rights of hunters to shoot deer or, for that matter, the social consequences of arming lunatics who want to go Jew-hunting in California.
The big picture that emerges from the lawsuits against gun manufacturers is the threat that speculative theories of liability are going to be used to beat up on legal industries selling legal products designed for legal use.
While the gun makers may be easy targets - much like the tobacco companies before them, and the lead-paint manufacturers that are next on the list - this kind of litigation does considerable damage to the motion of liability, to the common-sense, common-law principle that specific harm must be done to a specific victim by a specific wrong-doer, before liability and damages are determined.
Even Robert Reich - professor at Brandeis, former Clinton labor secretary and a confirmed member of the left-wing conspiracy - has expressed concern about what he calls "taxation through litigation" - the surrender of regulation and political control over the safe manufacture and distribution of legal products to the lottery fever of the courthouse.
Our political and regulatory processes have developed hundreds of ways to torture manufacturers, to license and inspect, to curb dangerous or overreaching advertising claims and, to be sure, to develop a system of product-liability law that provides a mechanism for compensation when product defects cause harm.
But when the law is used creatively against unattractive or unpopular industries, the threat is not just to those industries, but to every butcher, baker and candlestick maker who runs afoul of public opinion or political opportunism.
Product-liability laws are not lovely, are not always coherent, are not applied or interpreted consistently across the country. But they do provide an important framework within which the nation can determine who's been naughty and who's been nice. Such law-school stuff as proximate cause, assumption of risk and contributory negligence exist in part to balance the scales in a process where sympathetic juries are inclined to reward victims, even if the villain is a bit difficult to locate.
Careless, criminal or reckless use of a product can create tragedies and public-policy nightmares, but the end-use of a legal product doesn't represent the harm of a defective product. As a New Mexico court said in disarming one of these gun cases: "The mere fact that a product is capable of being misused to criminal ends does not render the product defective."
There are about 20 lawsuits pending against various gun manufacturers and dealers, filed by cities and counties ranging from Bridgeport to Chicago to Miami to St. Louis. It's fair to ask whether these government jurisdictions have legal "standing" to bring such cases (has Bridgeport City Hall been winged by a bullet?) and whether the states are prepared to allow their municipalities to become independent liability entrepreneurs.
A number of states (you can guess which ones: Wyoming, Nevada, Maine, South Dakota, Alaska and a bunch down South) have passed legislation to discourage or ban such litigation, and a bill in Congress would prohibit civil liability actions against the gun industry for damages "resulting in the misused of their products by others."
It's almost too bad that these bills are limited to guns. That might get you a standing ovation at an NRA convention, or praise from red-meat southern Republicans, but the big picture suggests that the same protection should be offered all manufacturers.
There are dozens of legislative and regulatory tortures available to beat up on tobacco companies and the firearms industry, if we are so inclined. But liability law shouldn't be subverted, shouldn't be manipulated t do in court what we apparently lack the popular support to do through the political process.
Laurence D. Cohen is senior fellow of the Yankee Institute for Public Policy.
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