Sunday, February 24, 2013

Tobacco Research Center replies to ALI on industry influence

The Center for Tobacco Control Research and Education has sharply criticized the ALI's response to the Center's recent study.  The Center revealed that fifty years ago tobacco industry lawyers secretly - and apparently successfully - lobbied American Law Institute Reporter William Prosser.  His draft was modified to exempt "good tobacco" from the new strict liability rule in the ALI's landmark Section 402A the scripture of contemporary product liability law.  The ALI responded with a cursory "we tell our members to leave their clients at the door".  The Center responds:
"The ALI’s refusal to engage the issues we document is the most troubling aspect of their response. If  the ALI’s goal is to create credible, independent assessments of law, it  must implement the same conflict of interest policies that have become routine at other comparable organizations. The ALI responders’ out-of-hand dismissal of the unrefuted documentary evidence we present and the associated recommendations to correct serious flaws in  the ALI’s conflict of interest policies belie their professed commitment to “consider legitimate criticism expressed in careful and responsible scholarship."
It is a sobering reality that for fifty years the tobacco industry conducted a vast fraudulent scheme as Judge Gladys Kessler famously found as fact.  Through that entire time tort law - much maligned by industry - was impotent.  Instead of developing concepts that would lead to holding the industry accountable the ALI's Restatement of Product Liability was led by men who considered tobacco product liability litigation to be "illegitimate", as the Center's study recounts.  The two Reporters - Professors Aaron Twerski and James Henderson had been paid as consultants by the tobacco industry.  I trust that their scholarship was the product of their ideology not their industry clients.  But they waged a protracted battle against what they styled "categorical liability", denouncing as not "justiciable" product liability actions which asserted that the risks of tobacco outweighed their utility.

As I discuss in my 2007 history Punctuated Equilibrium the ALI's products Restatement did preserve the tools needed to hold the industry to account.  The alternative safer design test was used successfully to show how Philip Morris had manipulated the nicotine content of its products, maximizing addictiveness, and securing the Marlboro brand's dominant place in the market.  But despite that the ALI should humbly acknowledge that its leaders used their considerable intellectual force to find ways to protect the industry rather than hold its masters liable for the massive epidemic of lung cancer, heart and respiratory disease, the greatest public health disaster of the second half of the twentieth century.
In this context the ALI's "we leave our clients at the door" dismissal of the Tobacco Center's study is woefully inadequate.  The common law - among the world's great legal systems - stands out for  its candid acknowledgement that law is not a search for the abstract truth but a contest among interested parties. The ALI, which seeks to clarify and improve the law, should take to heart the critique of Elisabeth Laposata, and the UCSF researchers.  They put forward as a model for the ALI the conflict of interest disclosures required by the National Academies of Science.  Doubtless the analogy is incomplete - but reasoning via incomplete analogy is characteristic of our profession.  The National Academies surely provide an example from which we can learn much as we try to sustain the credibility of the ALI so that we can continue to be an effective force in the improvement of the law. - GWC

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