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Using Litigation to Make Public Health Policy: Theoretical and Empirical Challenges in Assessing Product Liability, Tobacco, and Gun Litigation


Timothy D. Lytton


Albany Law School


Journal of Law, Medicine & Ethics, Vol. 32, No. 4, Winter 2004

Abstract:     
In the debate over the use of litigation to make public health policy, proponents and critics of the litigation disagree over the proper role of courts in policy making. Proponents assert that courts have an essential role to play alongside legislatures and administrative agencies in making public policy. They point to the failure of legislatures and agencies to regulate product safety, tobacco, and guns more aggressively as justification for a policy making role for courts. Critics insist that the job of courts is to resolve private disputes and to enforce legislative mandates, not to make public policy. Judges, they argue, make poor policy makers because they lack both the necessary tools and the democratic credentials of legislatures and agencies. Using the courts to make public policy will, in the end, critics suggest, politicize the judiciary, undermine the integrity of the litigation process, and erode public confidence in the courts. This article examines these arguments and argues that (1) the two sides rely on competing ideals of the proper role of courts drawn from constitutional law, both of which are inapposite to the traditional policy making role of courts in the context of civil litigation; and (2) the central arguments of each side require further theoretical elaboration and empirical support.

Number of Pages in PDF File: 9

Keywords: Litigation, public health, gun, tobacco, product liability

JEL Classification: I10, I18, K13, K23, K32, K41, L50, L66, L60

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Date posted: April 10, 2005  

Suggested Citation

Lytton, Timothy D., Using Litigation to Make Public Health Policy: Theoretical and Empirical Challenges in Assessing Product Liability, Tobacco, and Gun Litigation. Journal of Law, Medicine & Ethics, Vol. 32, No. 4, Winter 2004. Available at SSRN: http://ssrn.com/abstract=687101

Contact Information

Timothy D. Lytton (Contact Author)
Albany Law School ( email )
80 New Scotland Avenue
Albany, NY 12208
United States
518-445-2397 (Phone)

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