Thursday, November 8, 2012

Tobacco Industry Influence on the American Law Institute

Tobacco Industry Influence on the American Law Institute’s Restatements of Torts and Implications for Its Conflict of Interest Policies, 98 Iowa Law Review 1 (2012)
by Elizabeth Laposata,  Richard Barnes  & Stanton Glantz

Center for Tobacco Control Research and 
Education at the University of California, San Francisco

The American Law Institute's Restatement of the Law 2d: Torts gave powerful impetus to the development of the law of product liability.  Its section 402A was widely embraced by courts in the 1960's and 1970's.  It helped to foster successful claims against asbestos companies and manufacturers of dangerous devices - particularly automobiles and unsafe industrial machinery. Issued in 1964 the same year as the Surgeon General's landmark report Smoking and Health, the ALI exempted "good  tobacco" from the categories of products for which strict liability might be imposed - unless it was contaminated with "something like marijuana".  

The ALI functions in parliamentary fashion so lobbying by interested parties is not unexpected.  Members are instructed to "leave their clients at the door", unlikely as that may be to be accomplished.  Lawyers identify with their clients and ideological symbiosis usually follows. But Glantz, et al. demonstrate that there was much more than that going on.  Mining the millions of documents in the Legacy Tobacco Library they learned that tobacco industry lawyers working with their industry clients succeeded in modifying the draft Restatement to protect the tobacco industry from lawsuits.  A prime actor was Covington & Burling partner and tobacco industry defense architect H. Thomas Austern who arranged a December 1961 meeting between tort law giant William L. Prosser and  the Committee on Legal Affairs of the now notorious Tobacco Institute.  The "good tobacco" language soon entered the draft, helping to insulate the industry from tort liability.

When the Product Liability Restatement was undertaken the ALI hired Aaron Twerski and James Henderson  two law professors whose doctrinal approach disparaged "categorical liability" - asserting that courts should not be permitted to weigh the benefits of a category of products against the harm they do.  Such claims, in Twerski's view were "basically illegitimate", and "non-justiciable" - i.e. beyond the competence and proper province of the courts. Like his collaborator Henderson, Twerski had been a paid consultant for tobacco companies but declined such work once the Products Restatement work began.

Of particular note is the role as ALI advisor of one of the tobacco and pharmaceutical industries most dedicated lawyers and defenders, Victor Schwartz.  The successor to Prosser on the master's torts casebook after the Dean's death in 1972, Schwartz's name appears 350 times in the tobacco Legacy database.

Glantz, et alii compare the ALI to the National Academy of Sciences and the Institute of Medicine which also seek to influence government through rigorous and independent reports.  They criticize the ALI and assert its Restatements should be viewed skeptically because unlike NAS and the IOM, the ALI's conflicts policy inspires little confidence that conflicts of interest will be avoided.  The ALI's conflicts procedures, adopted in 1994 and amended in 2010 address only the Director and Reporters.  Institute Advisors (who play a key role in scrutinizing drafts) and Participants in the Members Consultative Groups are governed only by the ABA Model Rule of Professional Conduct 6.4, which provides:

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.
RPC 6.4 is a thin stricture - far from the rigor of the NAS and IOM whose policies apply to all members of committees or reviewing groups, and require disclosure of conflicts of interest of spouses and close relations. Members of committees must make annual disclosures and declare "the :institution will make best efforts to ensure that no individual appointed to a committee has a conflict of interest".  The NAS is governed by the Federal Advisory Committee Act 5 U.S.C. app. 2 § 15 which specifies
(A) no individual appointed to serve on the committee has a conflict of interest that is relevant to the functions to be performed, unless such conflict is promptly and publicly disclosed and the Academy determines that the conflict is unavoidable, (B) the committee membership is fairly balanced as determined by the Academy to be appropriate for the functions to be performed, and (C) the final report of the Academy will be the result of the Academy's independent judgment. The Academy shall require that individuals that the Academy appoints or intends to appoint to serve on the committee inform the Academy of the individual's conflicts of interest that are relevant to the functions to be performed.

The ALI is not a federal advisory organization, and lawyers' roles as confidential advocates  present challenges more complex than those faced by NAS advisory committees, but "disclosure: and "balance" of defense and plaintiff interests seems to me something that could and probably should have been undertaken in the highly contentious process of drafting the products liability restatement.  The Glantz study should prompt open and candid discussion within the Institute of the issue of conflicts of interest.
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