Reforming Public Interest Tort Law to Redress Public Health Epidemics

44 Pages Posted: 18 Feb 2012

See all articles by Michael L. Rustad

Michael L. Rustad

Suffolk University Law School

Thomas H. Koenig

Northeastern University

Date Written: 2011


This Article is a new audit of parens patriae public health lawsuits in which government attorneys address grave public health problems not resolved by either private tort litigation or administrative regulations. Our argument is that public health lawsuits are justified when the states have a substantial quasi-sovereign interest in reallocating the cost of medical monitoring or other means of addressing risks created by products-related disasters. In tobacco and lead paint cases, the state, as subrogee, employed parens patriae litigation in an effort to recoup the cost of treating hundreds of thousands of smoking and lead poisoning victims. The recent British Petroleum (BP) oil spill parens patriae actions are attempts to compel the polluters to pay for the public health costs created by the release of millions of gallons of oil and toxic chemicals into the waters of the Gulf of Mexico. These Gulf State parens patriae actions raise complex issues of justiciability, standing, separation of powers, and regulation by litigation. The size of the populations affected, the magnitude of the harm inflicted, and the inability of traditional tort principles to offer the victims any relief are important factors in determining the legitimacy of these public health actions. Part I traces the trajectory of public health law tort litigation from its roots in medieval English equity doctrine to the recent actions by U.S. state governments and municipalities in the aftermath of the BP oil spill. Part II summarizes and critically examines Professor Donald Gifford's thesis that the public law model of tort law employing parens patriae actions are a form of "faux legislation" that usurps the legitimate functions of America's legislative branch. Gifford argues that parens patriae lawsuits to resolve public health problems are doomed to be ineffective and, worse yet, raise the specter of creating an unaccountable "fourth branch of government." Part III presents a brief defense of the public law model of tort law as a mechanism to allocate the costs of health and environmental catastrophes from the corporate defendant to the state. Parens patriae litigation is beneficial because it redresses not just one on one or particularized injuries but also vindicates societal interests.

Suggested Citation

Rustad, Michael L. and Koenig, Thomas H., Reforming Public Interest Tort Law to Redress Public Health Epidemics (2011). Journal of Health Care Law & Policy, Vol. 14, p. 331, 2011, Suffolk University Law School Research Paper No. 12-13, Available at SSRN:

Michael L. Rustad (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

Thomas H. Koenig

Northeastern University ( email )

220 B RP
Boston, MA 02115
United States

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