Gun Litigation in the Mass Tort Context
Posted: 31 Mar 2005
This book chapter - part of a larger, interdisciplinary collection of scholarship on lawsuits against the gun industry - situates gun litigation within the larger context of mass tort litigation. The chapter explores the implications of gun litigation as a species of "social policy tort" litigation. The defining feature of such litigation consists of its objectives not only to seek conventional damages for past misconduct but also to precipitate prospective changes in product marketing in a manner independent from conventional regulation.
The chapter initially places gun litigation within two longer-term trends: developments in tort theory and a roughly contemporaneous transformation in the political landscape for regulatory programs in the public sector. The chapter then argues that gun litigation seeks to implement its prospective regulatory program in a manner strikingly unmindful of the lessons learned about conventional regulation in the public sphere - lessons that transcend partisan lines. Public regulation has increasingly focused on systematic comparison of proposed regulatory interventions based upon their relative cost-effectiveness and on political accountability in regulatory policy decisions. By contrast, gun litigation by municipalities seeks to frame questions surrounding industry marketing practices on a stand-alone basis, as matters to be addressed irrespective of other possible interventions to protect public safety and through arrangements of litigation finance that often are removed from the conventional budgetary process. The chapter further compares the negligent marketing claim in gun litigation with the longstanding difficulties associated with the handling of tort claims for latent disease.
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