Center for Business Law & Regulation
Center for Business Law & Regulation





Case Western Reserve University School of Law

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Regulation by Litigation Print Resources

BOOKS

1. Fund, John & Martin Morse Wooster – The Dangers of Regulation through Litigation.

2. Olsen, Walter K. – The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law. Truman Talley Books; 1st edition (January 21, 2003)
 - In this book, the author argues that trial lawyers subvert democracy by using courtroom procedures to obtain reforms, such as regulating guns, which the American left has not been able to achieve in the federal or state legislatures. (http://www.amazon.com/Rule-Lawyers-Litigation-Threatens-Americas/dp/0312280858)

3. Viscusi, W. Kip – Regulation through Litigation. AEI Press (September 1, 2002).
- By focusing on case studies involving the tobacco industry, guns, lead paint, breast implants, and health maintenance organizations, the contributors to this volume collectively shed light on the likely consequences of regulation through litigation for insurance markets and society at large. They analyze the ramifications of large-scale lawsuits, mass torts, and class actions for the insurance market, and advocate increased public scrutiny of attorney reimbursement and a competitive bidding process for all lawsuits involving government entities as the plaintiffs. (http://www.aei-brookings.org/publications/abstract.php?pid=253)


ARTICLES

1. Ausness, Richard – Public Tort Litigation: Public Benefit or Public Nuisance. 77 Temple L.R. 825.
- This article examines the history, impact, and future of government-sponsored lawsuits against tobacco, handgun, and lead-based paint manufacturers.

2. Ayres, Ian – Using Tort Settlements to Cartelize. 34 Val. U. L. R. 595.
- This article examines how state tort suits (settlements) cartelize price and reap a share of cartel profits.

3. Berryman, Jeff – Canadian Reflections on the Tobacco Wars: Some Unintended Consequences of Mass Tort Litigation. 53 I.C.Q.L. 579.
- This article compares and contrasts the US and Canadian efforts to regulate tobacco use. According to the author, in the United States class action litigation has been favored over public regulation. In Canada the main vehicle for controlling tobacco use has been through increasingly more strict public regulation.

4. Bitas, Basil C. and Pedro Barros – Tobacco Control and the Role of Litigation: A Survey of Issues in Law, Policy, and Economics. Available at SSRN: http://ssrn.com/abstract=1121000
- This article examines the course of tobacco litigation in the United States and its implications for law and policy in the future, both in the U.S. and internationally.

5. Chaloupka, Frank J., Ellen J. Hahn, and Sherry L. Emery – Policy Levers for the Control of Tobacco Consumption. 90 Kentucky L. J. 1009.
- This Article describes tobacco control policies (including litigation) that states and other governments have implemented, and explores the impact of these measures.

6. Coglianese, Cary – Litigating Within Relationships: Disputes and Disturbance in the Regulatory Process. 30 Law & Soc’y Rev 735.
- This article examines litigation against regulatory bodies especially when the litigants have a sustained relationship with the regulatory body.

7. Gifford, Donald G. – Impersonating the Legislature: State Attorneys General and Parens Patriae Product Litigation. 49 B.C. L. Rev. 913.
- This Article traces how state litigation against product manufacturers requires both a questionable expansion of the state's standing to sue parens patriae and a dubious utilization of longstanding torts such as public nuisance.

8. Gruber, Jonathan – Tobacco at the Crossroad: The Past and Future of Tobacco Regulation in the United States. 15 J. of Econ. Perspectives 193.
- This article traces the economic and legal history of tobacco regulation, focusing mainly on the flurry of activity in the mid and late 1990s.

9. Krauss, Michael I. – Regulation Masquerading as Judgment: Chaos Masquerading as Tort Law. 71 Miss. L. J. 631.
- This article attempts to show that regulatory litigation is inimical to the rule of law and such suit do nothing but contribute to constitutional and legal chaos.

10. Lytton, Timothy D. – Using Tort Litigation to Enhance Regulatory Policy Making: Evaluating Climate-Change Litigation in Light of Lessons from Gun-Industry and Clergy Sexual-Abuse Lawsuits. 86 Tex. L. Rev. 1837.
- This Article offers a theoretical framework for evaluating the influence of tort litigation on regulatory policy making using prior litigation campaigns as templates.

11. Manhattan Institute – Regulation Through Litigation: Assessing the Role of Bounty Hunters and Bureaucrats in the American Regulatory Regime. Manhattan Institute Conference Series No. 2.
- This transcript features two panel discussions regarding regulation through litigation featuring prominent legal, economic, and policy scholars.

12. Morriss, Andrew P. & Susan E. Dudley – Defining What to Regulate: Silica & the Problem of Regulatory Categorization. 58 Admin. L. Rev. 269.
- This article examines the current and future regulation of silica and the undesirable consequences of relying on the tort system to drive regulation.

13. Morriss, Andrew P., Bruce Yandle, and Andrew Dorchak – Regulating by Litigation: The EPA’s Regulation of Heavy-Duty Diesel Engines. 56 Admin. L. Rev. 403.
- The Article relates the EPA's choices to the incentives the agency faces. The Article also shows how the different forms of regulatory activity influence agency regulations. Finally, the Article concludes with a critique of regulation-by-litigation as a means of imposing substantive rules.

14. Morriss, Andrew P., Bruce Yandle, and Andrew Dorchak – Choosing How to Regulate. 29 Harvard Env. L. Rev. 179.
- In this Article, the authors survey how agencies create substantive regulations through traditional rulemaking, negotiated rulemaking and litigation. Using public choice analysis, the Article relates agency choice to the agency's incentive structure. The Article also shows how the different forms of regulatory activity influence the content of agency regulations.

15. Morriss, Andrew P. – Litigating to Regulate: Massachusetts v. Environmental Protection Agency. 2007 Cato Sup. Ct. Rev. 193.
- This article analyzes Massachusetts v. EPA as but one piece of a broader trend toward regulation through litigation.

16. Poncibo, Christina – Regulation and Private Litigation: A Debate Over the European Perspective. Available at SSRN: http://ssrn.com/abstract=1028527 (DRAFT COPY: NEED PERMISSON TO USE
- This article aims to present and to discuss the interaction of regulation and private litigation in the European-single-market. The Author finds that The trend toward mass lawsuits, combined with emerging consumer friendly substantive laws and the availability of U.S.-style practices, will probably create a new litigation landscape in Europe over the next few years.

17. Schroeder, Edward T. – A Tort by Any Other Name? In Search of the Distinction Between Regulation Through Litigation and Conventional Tort Law.
- This article proposes to define what constitutes regulation by litigation and applies that definition to recent litigation campaigns.

18. Schuck, Peter H. – Regulating Guns Through Litigation. Available at SSRN: http://papers.ssrn.com/abstract=476700
- This article examines the relative advantages and disadvantages of undertaking gun control through common law litigation versus other forms of social policymaking and implementation.

19. Schwartz, Victor E. and Leah Lorber – State Farm v. Avery: State Court Regulation Through Litigation Has Gone Too Far. 33 Conn. L. Rev. 1215.
- This article uses the Avery case to illustrate the continuing problem of regulation through litigation.

20. Viscusi, W. Kip – The Regulation Litigation Interaction. AEI-Brookings Working Paper 01-13. Available at SSRN: http://papers.ssrn.com/abstract_id=292645
- This article explores recent lawsuits involving cigarettes, guns, and other products have created a new phenomenon in which litigation either results in negotiated regulatory policies to settle the litigation or the litigation serves as a financial lever to promote support for governmental policies.

21. Wagner, Wendy E. – When All Else Fails: Regulating Risky Products Through Tort Litigation. Georgetown L. J. Forthcoming. Available at SSRN: http://papers.ssrn.com/abstract_id=902412
- This article argues that regulation by litigation is a valuable tool, especially when tort litigation is the only way to encourage product safety.

22. Willett, Linda A. – Litigation as an Alternative to Regulation: Problems Created by Follow-on Lawsuits with Multiple Outcomes. 18 Geo. J. Legal Ethics 1477.
- This Article focuses on the potential for erosion of the FDA's regulation by class action lawsuits initiated in state and federal courts, and raises questions about the ethical propriety of potentially undermining an agency's effectiveness through actions purported to be in the interests of consumer protection.

23. Yandle, Bruce, Andrew P. Morriss and Lea-Rachel Kosnik – Regulating Air Quality Through Litigation: The Diesel Engine Episode. PERC Policy Series 2002.
- This article attempts to identify the key elements of regulation by litigation and then apply them to one particular episode: The EPA regulation of large diesel engines.

24. Yandle, Bruce, Andrew Dorchak and Andrew P. Morriss – Bootleggers, Baptists & Televangelists: Regulating Tobacco by Litigation. Ill. L. & Econ. Paper No. LE07-021.
- The Article begins by showing how tobacco regulation through the 1980s fit the traditional bootleggers and Baptists public choice model. It then explores the circumstances that made it possible for the emergence of the televangelists as a regulatory partner that the bootleggers would prefer. The Article then criticizes televangelist-bootlegger bargains as likely to result in substantial wealth transfers from large, unorganized groups to the coalition partners. It also shows how televangelist-bootlegger coalitions are more pernicious than bootlegger-Baptist coalitions.