BuckeyeBlog

With the recent sentencing of super-plaintiffs’ attorney Dickie Scruggs to five years in prison for conspiring to bribe a judge, another chapter in the disturbing and continuing saga of “regulation through litigation” has been written.

In recent years, state attorneys general have taken on an expanded role in using litigation as a means of achieving public policy goals, usually by filing lawsuits against businesses or industries that the AGs see as unpopular and easy targets. In the process, the AGs often enlist personal injury trial lawyers to get into the act. The most prominent case was the state-sponsored tobacco litigation in the 1990’s. Then-Mississippi AG Mike Moore hired Scruggs to assist with the lawsuit against tobacco companies that led to a settlement where the companies paid more than $200 billion to 46 states, including Ohio. It is estimated that Scruggs received somewhere between $500 to $800 million from the tobacco settlement. The success of the tobacco litigation has led to a trend of AGs misusing various legal theories in order sue businesses that produce or sell goods or services that are completely legal.

The now disgraced Elliot Spitzer was one of the most egregious abusers of his office when he was New York’s AG. He brought several questionable lawsuits, including one against out-of-state gun manufacturers for causing gun violence and another against out-of-state utilities for causing global warming. Spitzer then used these high-profile cases as a stepping stone for his run for New York governor. Similarly disgraced Marc Dann modeled his campaign for Ohio AG after Spitzer’s approach of threatening litigation to achieve political ends.

In the eyes of these activist AGs and their trial lawyer accomplices, they can achieve political outcomes without going through the traditional lawmaking function required by the U.S. Constitution and the various state constitutions. By bringing lawsuits, they can effectively tax and regulate tobacco companies, electric utilities, gun manufacturers, etc. without having to worry about the legislative or regulatory process. In doing so Spitzer, Dann, Scruggs and the rest of the “regulation through litigation” crowd painted their crusade as necessary in order to protect the little guy and make the legal system achieve its true potential.

In the end, Spitzer, Dann, and Scruggs were done in by their disregard for the legal system and the laws they hid behind. Lust, greed, and ambition were their true motivators and they have now been exposed. Unfortunately, we are stuck with their legacy: state AGs and their trial lawyer buddies abusing the legal system to achieve political ends. Hopefully, more courts will see through such abuse as the Rhode Island Supreme Court did this week in the context of the bogus lead paint litigation.