Fire and Smoke: Government Lawsuits and the Rule of Law

Abstract:     
This is an exhaustive review of the firearm and tobacco tort recoupment suits (i.e., suits by governmental entities for sums allegedly paid due to firearms and tobacco products). The perspective is one of tort law, not of constitutional law. The argument of the paper is that, as concerns each and every one of the criteria for tort liability accepted for over 200 years, the recoupment suits must fail. Their success would signify a qualitative shift of Tort law, away from private ordering and toward public, collective ordering.

JEL Classification: K13

Accepted Paper Series