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Using Tort Litigation to Enhance Regulatory Policy

Making: Evaluating Climate-Change Litigation in

Light of Lessons from Gun-Industry and Clergy-

Sexual-Abuse Lawsuits

Timothy D. Lytton

I. Introduction

In recent years, tort litigation has been used to address a variety of

social problems. Examples include lawsuits aimed at reducing smoking-

related illness, gun violence, and obesity.

Reactions to this use of tort

litigation to influence regulatory policy—what scholars have termed

“regulation through litigation”—have been mixed. On one hand,

commentators have argued that litigation can be an effective means of

shaping public policy and improving the performance of other policy-making

institutions. Lawsuits can frame issues in new ways, give them greater

prominence on the agendas of regulatory institutions, uncover policy-relevant

information, and mobilize reform advocates.

On the other hand,

commentators have cautioned that regulation through litigation can be

inefficient and ineffective. Compared to other forms of regulation, litigation

is often unnecessarily complex, protracted, costly, unpredictable, and

inconsistent.

Moreover, courts are generally less well equipped than

legislatures and administrative agencies to evaluate technical information,

* Professor of Law, Albany Law School. B.A. 1987, J.D. 1991, Yale University. I am grateful

for comments on earlier drafts by David Hunter, Peter Janowski, Alice Kaswan, Hari Osofsky,

Allen Rostron, Wendy E. Wagner, and Chris Weimer. Essential research assistance was provided

by Mark Skanes. Please send comments to [email protected].

1. These lawsuits are based not only on traditional common law tort claims such as

misrepresentation, negligence, and product defect, but also on statutory claims such as public

nuisance and unfair trade practices. The latter might be better characterized as public enforcement

actions. Nevertheless, for the sake of simplicity, I refer to all of these different examples as “tort

litigation.”

2. See, e.g., Peter D. Jacobson & Kenneth E. Warner, Litigation and Public Health Policy

Making: The Case of Tobacco Control, 24 J.

HEALTH POL. POL’Y & L. 769, 769 (1999) (finding “a

distinct role for litigation as a complement to a broader, comprehensive approach to . . . policy

making”); Lynn Mather, Theorizing About Trial Courts: Lawyers, Policymaking, and Tobacco

Litigation, 23 L

AW & SOC. INQUIRY 897, 897–99 (1998) (exploring how tobacco litigation changed

government tobacco policy); Robert L. Rabin, Reassessing Regulatory Compliance, 88 G

EO. L.J.

2049, 2053 (2000) (considering the interplay between regulation and tort law); Wendy E. Wagner,

When All Else Fails: Regulating Risky Products Through Tort Litigation, 95 G

EO. L.J. 693, 694–95

(2007) (arguing that critics of regulation through litigation “ignore debilitating limitations on

information that reduce the competence and accountability of agency regulators”).

3. See R

OBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW 4 (2001)

(criticizing U.S. governance and legal processes as “markedly inefficient, complex, costly, punitive,

and unpredictable” and, in consequence, often unjust).

1838 Texas Law Review [Vol. 86:1837

implement regulations, monitor results, and make adjustments.

Policies

resulting from litigation may involve less public input and accountability

compared to government regulation, serving the private or political interests

of the litigants rather than the public interest.

Litigation can also be

counterproductive to policy reform by generating a legislative backlash

against regulation.

Like any policy tool, litigation has strengths and weaknesses, and it

performs better in some contexts than in others. This Article offers a

theoretical framework for evaluating the influence of tort litigation on

regulatory policy making. The framework has three parts. First, using two

examples—gun-industry and clergy-sexual-abuse litigation—the Article

highlights six distinct ways in which litigation influences policy making: by

(1) framing issues in terms of institutional failure and the need for

institutional reform; (2) generating policy-relevant information; (3) placing

issues on the agendas of policy-making institutions; (4) filling gaps in

statutory or administrative regulatory schemes; (5) encouraging self-

regulation; and (6) allowing for diverse regulatory approaches in different

jurisdictions. Second, the Article suggests empirical measures for assessing

the extent to which litigation influences policy making in these six ways.

Third, the Article compares the relative success of gun-industry and clergy-

sexual-abuse litigation to identify conditions that favor the use of litigation as

a policy tool.

This framework can be applied more generally to other examples of

regulation through litigation. In this Article, I use it to suggest how we might

evaluate lawsuits against producers of greenhouse-gas emissions as a means

of addressing climate change. Proponents of climate-change litigation assert

that it enhances policy making in all of the ways suggested above. They

claim that it frames the issue of climate change in ways that favor policy

reforms; generates policy-relevant information; places the issue on the

agendas of policy-making institutions; fills a regulatory gap created by

federal resistance to addressing the issue; encourages voluntary self-

regulation by industry; and allows for diverse regulatory approaches in

different regions.

Critics argue that climate-change litigation is doctrinally

4. Peter H. Schuck, Why Regulating Guns Through Litigation Won’t Work, in SUING THE GUN

INDUSTRY: A BATTLE AT THE CROSSROADS OF GUN CONTROL AND MASS TORTS 225, 234–35

(Timothy D. Lytton ed., 2005).

5. See W. Kip Viscusi, Overview of R

EGULATION THROUGH LITIGATION 1, 1, 20 (W. Kip

Viscusi ed., 2002) (discussing the drawbacks to regulation through litigation).

6. See, e.g., Timothy D. Lytton, The NRA, the Brady Campaign, & the Politics of Gun

Litigation, in S

UING THE GUN INDUSTRY, supra note 4, at 152, 166 (explaining that, in response to

lawsuits, the gun industry persuaded thirty-two states to provide the industry with statutory

immunity against most litigation).

7. See, e.g., William W. Buzbee, Asymmetrical Regulation: Risk, Preemption, and the

Floor/Ceiling Distinction, 82 N.Y.U.

L. REV. 1547, 1617 (2007) (stating that, with regard to

greenhouse gases, “eliminating . . . common law incentives creates a high risk of dysfunctional

regulation”); David Hunter, The Implications of Climate Change Litigation for International

2008] Using Tort Litigation to Enhance Regulatory Policy 1839

unsound, costly, unlikely to reduce greenhouse-gas emissions, and may even

be counterproductive.

The framework presented in this Article offers tools

with which to advance this debate. The framework suggests how to define

and measure success and how to explain the litigation’s degree of success or

failure by reference to the larger context in which it is situated. The

framework offers guidance for evaluating both the achievements and

shortcomings of climate-change litigation so far, as well as its future

prospects.

Before I proceed, two caveats are in order. First, this Article does not

provide an extensive literature review on the strengths and weaknesses of

regulation through litigation or a comprehensive account of gun-industry or

clergy-sexual-abuse litigation. Those seeking greater detail should consult

sources cited in the footnotes. My aim is instead to sketch a general

framework that can be used to evaluate the value of tort litigation as a policy

tool in a variety of contexts.

Second, aside from questions about the effectiveness of tort litigation as

a policy tool, there is also a question about the legitimacy of using private

lawsuits to influence public policy. Critics have argued that regulation

through litigation involves judicial usurpation of the legislative role in

violation of the separation of powers. Courts, they contend, should focus on

resolving cases and controversies and leave public policy to legislatures.

Defenders have countered that the distinct branches of government have

historically had overlapping functions within our system of government and

that regulation through litigation is entirely consistent with that tradition.

Environmental Law-Making, in ADJUDICATING CLIMATE CONTROL: SUB-NATIONAL, NATIONAL,

AND

SUPRA-NATIONAL APPROACHES (H. Osofsky & W. Burns eds., forthcoming 2008), available

at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1005345; Alice Kaswan, The Domestic

Response to Global Climate Change: What Role for Federal, State, and Litigation Initiatives?, 42

U.S.F.

L. REV. 39, 99–100 (2007) (explaining that some of the advantages of climate-change

litigation are that “courts are insulated from the lobbying endemic in the legislative and regulatory

process” and that courts can and must decide cases even as “legislatures are locked in political

paralysis”).

8. See, e.g., Joni Hersch & W. Kip Viscusi, Allocating Responsibility for the Failure of Global

Warming Policies, 155 U. PA. L. REV. 1657, 1692–93 (2007) (arguing that climate-change litigation

is not well suited to address the market failures involved, since the damages are largely for

“prospective” harm); Shi-Ling Hsu, A Realistic Evaluation of Climate Change Litigation Through

the Lens of a Hypothetical Lawsuit, 78

U. COLO. L. REV. (forthcoming 2008), available at http://

works.bepress.com/cgi/viewcontent.cgi?article=1005&context=shi_ling_hsu (stating that, rather

than litigation, “broad-based legislative and international action must be the primary means of

addressing the problem of global climate change”); Reimund Schwarze, Liability for Climate

Change: The Benefits, the Costs, and the Transaction Costs, 155 U.

PA. L. REV. 1947, 1947 (2007)

(“[C]laims for climate change-related damages could become crushingly expensive and cause high

transaction costs.”).

9. Timothy D. Lytton, Using Litigation to Make Public Health Policy: Theoretical and

Empirical Challenges in Assessing Product Liability, Tobacco, and Gun Litigation, 32 J.L.

MED. &

ETHICS 556, 556–57 (2004).

10. See id. at 560 (“Indeed, in many areas of life unregulated by statute, adjudication of

common law claims has been the primary, or even sole, source of regulatory policies.” (endnotes

omitted)).

1840 Texas Law Review [Vol. 86:1837

While a complete assessment of regulation through litigation must confront

this question of legitimacy, I have addressed it elsewhere and will leave it to

one side for the purposes of my analysis here.

In this Article, I will focus

exclusively on the effectiveness of tort litigation as a policy tool.

The Article proceeds in four Parts. Part II discusses methodology,

clarifying what it means to view tort litigation as a policy tool and how this

perspective differs from more traditional accounts of tort law. Part III uses

the examples of gun-industry and clergy-sexual-abuse litigation to highlight

the ways in which tort litigation can enhance policy making. It also surveys

the types of empirical evidence that can be used to determine the significance

and value of litigation’s impact on policy making. Part IV compares the

results of these two examples of regulation through litigation and suggests

that clergy-sexual-abuse litigation was more successful in enhancing policy

making than was gun-industry litigation. This comparison reveals the

conditions that made clergy-sexual-abuse litigation more successful in

enhancing policy making and that, more generally, favor the use of

regulation through litigation. Part V offers suggestions about how to

evaluate climate-change litigation as a regulatory strategy.

II. Tort Litigation as a Policy Venue

Tort litigation has traditionally been understood as a means of dispute

resolution and risk regulation. Regulation through litigation illustrates how

private lawsuits can sometimes function as what political scientists Frank

Baumgartner and Bryan Jones call a “policy venue”—an institutional setting

where policy making takes place.

Baumgartner and Jones suggest that

policy making with regard to any particular issue may experience periods of

“equilibrium,” characterized by public apathy and institutional stasis, and

periods of “instability,” characterized by heightened concern and policy

innovation.

Equilibrium often occurs after an organization or a government

agency establishes jurisdiction over an issue and a policy is put in place.

Public attention dies down and vested interests both inside and outside the

institution protect the status quo from challenges.

By contrast, instability

results when existing policy is altered.

11. See generally id. (discussing the proper role of courts in making public-health policy and

examining the arguments made by proponents on both sides of the debate).

12. F

RANK R. BAUMGARTNER & BRYAN D. JONES, AGENDAS AND INSTABILITY IN AMERICAN

POLITICS 31 (1993). This discussion of tort litigation as a policy venue is drawn from TIMOTHY D.

LYTTON, HOLDING BISHOPS ACCOUNTABLE: HOW LAWSUITS HELPED THE CATHOLIC CHURCH

CONFRONT CLERGY SEXUAL ABUSE (2008).

13. B

AUMGARTNER & JONES, supra note 12, at 1–4, 19.

14. Id. at 19 (discussing “institutionally induced equilibria”).

15. Id.

16. Id. at 20.

2008] Using Tort Litigation to Enhance Regulatory Policy 1841

Policy change, according to Baumgartner and Jones, is a function of two

factors: framing and venue.

When an issue is reframed, it may excite

public interest and engender pressure for policy reform.

When an issue

falls under a different institutional jurisdiction, the change in venue may

bring with it new ways of approaching the problem and different tools for

responding to it.

Moreover, reframing and venue change reinforce each

other. Reframing leads other institutions to exercise jurisdiction over an

issue, often resulting in venue change, and venue change often results in

reframing an issue to conform to the particular institutional perspectives and

expertise of the new venue.

For example,

Tobacco policy in the agriculture arena is seen as an important source

of jobs; in health policy circles it evokes images of disease; in

insurance and business cost-containment circles it is seen as a source

of increased health insurance premiums; in foreign trade circles it is

seen as an important source of U.S. export earnings. Each

institutional venue is home to a different image of the same

question.

Just as framing and venue are mutually reinforcing, so too are framing and

venue on the one hand and the mobilization of public opinion on the other.

Official frames and venues influence public opinion, while shifts in public

opinion influence the institutional framing and venue of an issue.

All of

this mutual reinforcement, or “positive feedback,” accelerates change during

periods of instability.

It also strengthens entrenchment during periods of

equilibrium.

Tort litigation can provide a new venue for policy issues, framing them

in new ways. Tort litigation also attracts press coverage that mobilizes and

shapes public opinion, which in turn creates pressure for reform. In these

ways, litigation can jump-start reform efforts in other policy venues such as

legislatures, administrative agencies, and private associations.

My analysis of tort litigation as a policy venue involves three notable

features.

First, I examine not only litigation outcomes but also the litigation

17. Id. at 20.

18. Id. at 25–30.

19. Id. at 25, 31–35.

20. Id. at 36.

21. Id. at 31.

22. Id. at 246–48.

23. See id. at 16–18, 25 (discussing the role of “positive feedback” in bringing about political

change).

24. Id.

25. My analysis builds on the earlier studies of scholars such as Lynn Mather, Peter Jacobson,

Kenneth Warner, and Wendy Wagner, who have developed detailed accounts of the ways in which

tort litigation has complemented the policy-making efforts of legislatures, agencies, and private

industry to affect tobacco-control policy. See generally Jacobson & Warner, supra note 2

(suggesting that although litigation serves a purpose, legislative and regulatory processes are still

necessary to influence tobacco policy); Mather, supra note 2 (examining how tobacco litigation has

1842 Texas Law Review [Vol. 86:1837

process. Tort scholarship has traditionally focused on the policy implications

of judgments and settlements in terms of deterring and spreading risk. In

addition, I look at how pleading, discovery, motion practice, trials, and

appeals influence policy making. Second, I attend to the interaction of tort

litigation with other regulatory institutions. Beyond merely comparing the

tort system’s strengths and weaknesses to other regulatory institutions, I

consider how tort litigation influences and is influenced by policy making in

these other institutions. Third, I focus less on regulatory outcomes than on

policy making. While it is difficult to measure the effects of litigation on gun

violence rates and clergy sexual abuse, it is much easier to identify the ways

in which litigation influenced efforts to address these problems. In the end,

while some may disagree with my evaluation of gun and clergy-sexual-abuse

litigation, I hope that even critics will find these three features of my analysis

illuminating and adaptable to other contexts.

Asserting that tort litigation influences policy making is a causal claim.

Causal claims involving complex social interactions are notoriously difficult

to substantiate. In making such claims, one should be clear about the nature

of one’s empirical evidence and its limitations. Where possible, it is helpful

to combine different types of evidence, such as anecdotal information from

interviews, content analysis of documents, and aggregate data. Moreover, I

do not mean to suggest a straightforward chain of causation between

litigation and policy making. Rather, we should view litigation as one causal

factor—within a complex interplay of causal factors and feedback effects—

that can prompt and shape policy-making activity.

III. The Influence of Tort Litigation on Policy Making

Gun-industry and clergy-sexual-abuse litigation illustrate six ways in

which tort litigation may influence regulatory policy making by: (1) framing

issues in terms of institutional failure and the need for institutional reform;

(2) generating policy-relevant information; (3) placing issues on the agendas

of policy-making institutions; (4) filling gaps in statutory or administrative

regulatory schemes; (5) encouraging self-regulation; and (6) allowing for

diverse regulatory approaches in different jurisdictions. While a complete

survey of the evidence that supports these findings is beyond the scope of

this Article, I will offer samples of the different types of evidence available

and include footnotes citing more extensive evidence.

changed tobacco policy); Wendy E. Wagner, Rough Justice and the Attorney General Litigation, 33

A. L. REV. 935 (1999) (arguing that attorney-general litigation has had positive contributions to

tobacco policy).

2008] Using Tort Litigation to Enhance Regulatory Policy 1843

A. Gun-Industry Litigation

Beginning in the early 1980s, gun-violence victims began turning to the

tort system seeking compensation for their injuries.

They filed claims not

only against their assailants but also against gun sellers and manufacturers.

By suing sellers and manufacturers, who have deeper pockets than the

assailants, victims sought to improve their chances of receiving

compensation.

They also viewed litigation as a way to promote safer

firearms designs, deter future sales to criminals, and place part of the blame

for gun violence on the industry.

By the late 1990s, municipalities began

suing the gun industry to recover the costs of law enforcement and

emergency medical services related to gun violence.

Several of these

government lawsuits also demanded injunctions that would have forced the

industry to incorporate safety features into firearms and restrict sales in ways

aimed at reducing gun violence.

The gun industry and its allies responded

with a successful lobbying campaign that convinced over thirty states to

grant the industry statutory immunity from suit and culminated in the

enactment of federal immunity legislation in 2005.

Almost all of the lawsuits against gun sellers and manufacturers seeking

design modifications or marketing restrictions have been dismissed by courts

prior to trial.

Of the few favorable jury verdicts obtained by plaintiffs, all

but one were overturned on appeal.

A handful of claims settled prior to

trial.

A few lawsuits currently remain, in which plaintiffs are arguing that

the federal immunity statute is either not applicable to their claims or

unconstitutional.

While lawsuits against gun manufacturers and wholesale

26. This discussion is drawn from Timothy D. Lytton, Introduction: An Overview of Lawsuits

Against the Gun Industry to S

UING THE GUN INDUSTRY, supra note 4, at 1. For more detail, see id.

at 2–15 (discussing the rise of gun-industry litigation).

27. Id. at 6.

28. Id.

29. Id. at 7–11.

30. See, e.g., City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1106 (Ill. 2004)

(describing the city’s public-nuisance claim against a gun manufacturer); see also Timothy D.

Lytton, The Complementary Role of Tort Litigation in Regulating the Gun Industry, in S

UING THE

GUN INDUSTRY, supra note 4, at 250, 257–58 (discussing id.).

31. See, e.g., City of Chicago, 821 N.E. 2d at 1106 (“[P]laintiffs seek . . . permanent injunctive

relief . . . .”); see also Lytton, supra note 26, at 257–58 (discussing id.).

32. Lytton, supra note 26, at 166.

33. See Schuck,

supra note 4, at 225, 226 (noting the lack of success in gun-industry tort

litigation).

34. Lytton, supra note 26, at 5.

35. Id.

36. See Ileto v. Glock, Inc., 421 F. Supp. 2d 1274 (C.D. Cal. 2006) (dismissing a lawsuit

against gun-industry defendants based on a federal immunity statute), appeal docketed, No. 06-

56872 (9th Cir. Jan. 23, 2007); City of New York v. Beretta U.S.A. Corp., 429 F. Supp. 2d 517

(E.D.N.Y. 2006) (finding the federal immunity statute not applicable to a lawsuit brought by New

York City against gun industry defendants), rev’d, No. 05-6942, 2008 WL 1884167, at *15 (2d Cir.

Apr. 30, 2008); Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind. Ct. App. 2007)

1844 Texas Law Review [Vol. 86:1837

distributors appear to be winding down, New York City has recently filed

lawsuits against out-of-state retail gun dealers to whom crime guns recovered

in New York City have been traced.

The City has settled with several

dealers who have agreed to supervision of their sales practices by a court-

appointed special master, and litigation against the remaining dealers is

currently in progress.

Gun litigation has been part of a larger trend to frame gun violence as an

industry problem best addressed by greater regulation of firearm design and

marketing.

In the 1960s and 1970s, injury prevention emerged as a field of

inquiry within public health.

As this field developed, researchers turned

their attention to gun violence as a source of injury.

By analyzing gun

violence as an “epidemic,” public-health scholars sought to identify the

causes and distribution of gun-violence injury using epidemiological tools

common in the study of disease.

Identifying firearms as the “disease agent”

spurred interest in safer gun designs.

A search for “environmental factors”

that foster gun violence led researchers to examine the marketing and

distribution of firearms, giving rise to proposals for greater restrictions on

gun sales.

Increasing interest in firearm designs and marketing restrictions

spurred by this public-health approach has expanded the focus of attention

from the individual perpetrators of gun violence to include manufacturers

and dealers. As a result, there has been less emphasis on criminal sanctions

as a response to gun violence and more interest in industry regulation as a

way to prevent it.

Early lawsuits against the gun industry were inspired by

this focus on industry regulation and helped promote it.

(finding federal immunity statute not applicable to lawsuit brought by the city of Gary, Indiana

against gun-industry defendants).

37. See, e.g., City of New York v. Bob Moates’ Sport Shop, Inc., No. 06-CV-6504, 2008 WL

427964 (E.D.N.Y. Feb. 15, 2008) (awaiting trial on Sept. 2, 2008); City of New York v. A-1

Jewelry & Pawn, Inc., 501 F. Supp. 2d 369 (E.D.N.Y. 2007).

38. John Sullivan, Three More Gun Dealers Settle Suit, N.Y.

TIMES, Mar. 21, 2007, at B4.

Because of legal restrictions on the use of federal crime-gun trace data, on which New York City’s

suit is based, it is unclear whether other cities could replicate this type of suit. See Timothy Lytton,

The Sting, B

OSTON GLOBE, Aug. 27, 2006, at D1.

39. This paragraph is drawn from Lytton, supra note 26, at 4.

40. Id.

41. Id.

42. W

INDLE TURLEY & JAMES E. ROOKS, JR., FIREARMS LITIGATION 12 (1988).

43. See, e.g., Susan DeFrancesco, Children and Guns, 19 P

ACE L. REV. 275, 278–84 (1999)

(listing gun designs that could improve safety); Garen J. Wintemute, The Future of Firearm

Violence Prevention: Building on Success, 282 JAMA 475, 476 (1999) (identifying changes in gun

designs in the mid-1990s).

44. Wintemute, supra note 43, at 475–77.

45. For a recent survey of this public-health approach to gun violence, see generally D

AVID

HEMENWAY, PRIVATE GUNS, PUBLIC HEALTH (2004).

46. W

ALTER K. OLSON, THE RULE OF LAWYERS: HOW THE NEW LITIGATION ELITE

THREATENS AMERICA’S RULE OF LAW 101–02 (2003); TURLEY & ROOKS, supra note 42, at 12.

2008] Using Tort Litigation to Enhance Regulatory Policy 1845

By framing gun violence as an industry problem, litigation has given

gun-control proponents new rhetorical tools in public and legislative debates

over gun-control policy.

Traditionally, gun-control debates have pitted

concerns about public safety against gun-ownership rights. Lawsuits have

allowed gun-control proponents to develop their own rhetoric of rights,

arguing that gun litigation, regardless of its regulatory implications, is

primarily an effort to vindicate plaintiffs’ rights to compensation for their

injuries.

By focusing attention on allegations of industry misconduct,

litigation has also allowed gun-control proponents to portray their efforts as

aimed at holding corporate wrongdoers accountable rather than limiting the

rights of ordinary gun owners.

And finally, the epidemiological approach

to gun violence employed by plaintiffs helps gun-control proponents recast

gun control as an effort to eradicate a public-health problem rather than

restrict gun ownership.

Litigation has also generated information relevant to regulating firearm

design and gun-industry marketing practices. Discovery has uncovered that

gun manufacturers are further along in developing safer gun designs than

their public statements suggest. For example, in one case, plaintiffs obtained

a “highly confidential” memorandum from gun manufacturer Colt

concerning the development of a “smart gun” that would operate only if fired

by an authorized user.

The memorandum revealed that “Colt management

has not wanted to tip its hand in terms of how close Colt is to launching its

first ‘Smart Gun’ product.”

The memorandum explained that the “reasons

Colt management has not kept the public informed with its recent exceptional

progress, which may result in a quicker time to market,” are a desire to avoid

“the press, legislators, or plaintiff lawyers influencing the launch decision as

Colt is testing and evaluating its first generation models,” fear that other

competitors might “start catching up if it is believed that [a] viable ‘Smart

Gun’ were about to be released,” and concern that $20 to $40 million of

federal funding for research on smart-gun technology being sought by Colt

could be threatened if press reports on Colt’s progress led Congress to

conclude “that further research dollars are not needed.”

Litigation has also exposed gun-industry executives’ awareness of how

guns are diverted into illegal secondary markets and their resistance to

47. This paragraph draws on Lytton, supra note 6, at 164–66.

48. Id. at 165.

49. Id. at 164.

50. Id. at 165.

51. Wendy Wagner, Stubborn Information Problems & the Regulatory Benefits of Gun

Litigation, in S

UING THE GUN INDUSTRY, supra note 4, at 271, 278–79 (citing Memorandum from

Steven M. Sliwa, CEO and President, Colt Mfg. Co. to Zilkha Capital Partners, Zilkha Venture

Partners, and iColt (June 28, 1999)).

52. Id. at 279.

53. Id.

1846 Texas Law Review [Vol. 86:1837

reform. In one lawsuit, former high-ranking gun lobbyist Bob Ricker

revealed the following in an affidavit:

The firearm industry . . . has long known that the diversion of

firearms from legal channels of commerce to the illegal black market

in California and elsewhere, occurs principally at the distributor/dealer

level. Many of those firearms pass quickly from licensed dealers to

juveniles and criminals through such avenues as straw sales, large-

volume sales to gun traffickers and various other channels by corrupt

dealers or distributors who go to great lengths to avoid detection by

law enforcement authorities. Leaders in the industry have long known

that greater industry action to prevent illegal transactions is possible

and would curb the supply of firearms to the illegal market. However,

until faced with a serious threat of civil liability for past conduct,

leaders in the industry have consistently resisted taking constructive

voluntary action to prevent firearms from ending up in the illegal gun

market and have sought to silence others within the industry who have

advocated reform.

Ricker’s affidavit goes on to provide detailed accounts of the techniques used

by rogue dealers to enable the diversion of guns into the black market and the

efforts of gun-industry executives to avoid taking any responsibility for the

problem.

Litigation has generated policy-relevant information outside of the

discovery process as well. In order to provide the evidentiary basis for tort

claims, municipal plaintiffs Chicago; Detroit; Gary, Indiana; and New York

City have run sting operations that exposed illegal sales practices among gun

dealers.

Litigation has also provided occasion for experts to perform in-

depth analysis of publicly available data on gun violence. Plaintiffs have

presented expert testimony analyzing Bureau of Alcohol, Tobacco, Firearms,

and Explosives (BATFE) crime-gun trace data, arguing that the “oversupply”

of guns to dealers in Southern states with relatively liberal gun laws provides

a source of guns that are illegally trafficked into Northern states with more

stringent laws where they are used to commit crimes.

For many decades, gun control has appeared periodically on the policy

agendas of local governments, state legislatures, and Congress. Litigation

gave it added prominence. Ironically, it was gun-industry defendants and

54. Declaration of Robert A. Ricker in Support of Plaintiffs’ Opposition to Defendant

Manufacturers’ Motion for Summary Judgment ¶ 8, People v. Arcadia Mach. & Tool, Inc., No.

4095, 2003 WL 21184117 (Cal. Super. Ct. Apr. 10, 2003), aff’d sub. nom. In re Firearm Cases, 24

Cal. Rptr. 3d 659 (Cal. Ct. App. 2005).

55. Id. ¶¶ 9–13.

56. Lytton, supra note 38; Allen Rostron, Lawyers, Guns, & Money: The Rise and Fall of Tort

Litigation Against the Firearms Industry, 46 S

ANTA CLARA L. REV. 481, 491–92 (2006) (reviewing

UING THE GUN INDUSTRY, supra note 4).

57. E.g., Hamilton v. Beretta, 750 N.E.2d 1055, 1059–60 (N.Y. 2001); see also Lytton, supra

note 26, at 9–10 (discussing Hamilton).

2008] Using Tort Litigation to Enhance Regulatory Policy 1847

their allies who capitalized on this aspect of the litigation. They used the

litigation as an opportunity to secure statutory immunity from tort liability,

making the likelihood of additional government regulation of the gun-

industry even more remote.

Litigation also motivated successful efforts by

the gun lobby to restrict the availability and use of federal crime-gun trace

data compiled by the BATFE that served as the basis for many plaintiffs’

claims. The Tiahrt Amendment, an appropriations rider first passed in 2003

and renewed each year since then,

prohibits the BATFE from publishing

reports using the data, limits local-government access to the data, and

prevents using the data as evidence in any legal proceeding not filed by the

BATFE.

Although the litigation has been counterproductive in terms of

promoting further government regulation of the gun industry, it has given the

issues of gun safety and responsible marketing greater salience among policy

makers within the industry. In the wake of the litigation, the industry has

developed and adopted self-regulatory measures such as selling trigger locks

with guns, distributing educational materials for children about gun safety,

and conducting advertising campaigns denouncing straw purchases and other

illegal sales practices.

In some instances, gun litigation has filled gaps in preexisting

regulatory schemes. For example, consider the case of mail-order gun kits.

Federal law requires that those regularly in the business of selling guns

obtain a federal firearms license,

conduct background checks on all

buyers,

restrict out-of-state sales to other federal firearms licensees

(FFLs),

and comply with federal, state, and local firearms laws.

addition, the law requires that all guns carry a serial number on the frame or

receiver of the gun in order to assist law enforcement in tracing the sales and

ownership history of the gun if used in a crime.

One strategy for evading

58. Lytton, supra note 6, at 152.

59. See Andrew Taylor, Lawmakers Block Access to Gun Sales Data, W

ASHINGTONPOST.COM,

July 12, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/07/12/AR2007071201

290.html (describing the most recent failed attempt to eliminate the Tiarhrt Amendment).

60. A more current version of the Amendment is codified at 18 U.S.C. § 923 note (Supp. V

2000).

61. See James Bennet, Gun Makers Agree on Safety Locks, N.Y.

TIMES, Oct. 9, 1997, at A1

(discussing gun manufacturers’ voluntary decisions to provide child-safety locks with handguns);

National Shooting Sports Foundation (NSSF), Safety and Education, http://www.nssf.org

/safety/index.cfm?AoI=safety (promoting the gun safety programs of the foundation). The National

Shooting Sports Foundation is the trade association of the firearm industry. National Shooting

Sports Foundation (NSSF), About, http://www.nssf.org/about/nssf.cfm?AoI=generic.

62. The discussion of gun kits draws on Lytton, supra note 30, at 252–54. The language in this

paragraph appears in id. at 252.

63. 18 U.S.C. § 923(a).

64. Id. § 922(s).

65. Id. § 922(a)(2).

66. Id. § 923(d)(1).

67. 26 U.S.C. § 5842(a) (2000).

1848 Texas Law Review [Vol. 86:1837

these regulations is to sell guns disassembled in the form of parts kits, since

the regulations apply to firearms but not to firearm parts.

Just such a scheme gave rise to the case of Halberstam v. S.W. Daniel,

Inc.

The defendant gun manufacturer in that case sold its semiautomatic

pistol in the form of a mail-order parts kit.

While the statutory definition of

a firearm includes “any combination of parts from which a firearm . . . can be

assembled,”

the defendants’ gun kits included all the necessary parts except

the frame.

The kits did, however, include sheet-metal flats that, when

folded, were designed to serve as frames.

The defendants sold their guns to

out-of-state purchasers who were not FFLs

—they took phone orders,

provided postal delivery, gave discounts for bulk purchases, made no request

for any information other than that required for payment and shipping, and

failed to keep any sales records.

Furthermore, they avoided having to place

serial numbers on their guns since the unmarked sheet- metal flats did not

constitute frames until folded.

The defendants subsequently testified that

they did not care who purchased their weapons.

One of their guns was used

in a shooting, and a number of the victims brought suit against the

company.

The plaintiffs alleged that, while technically legal, the

defendants’ marketing practices were negligent insofar as the defendants

failed to exercise reasonable care to prevent acquisition of their guns by

individuals with a high propensity for criminal misuse.

The plaintiffs’

claim ultimately made it to trial, where a jury agreed that the defendants’

marketing practices were negligent but found that they were not a substantial

factor in causing the plaintiffs’ injuries.

While the Halberstam plaintiffs’

claim ultimately foundered on the issue of causation,

the lawsuit put an end

to the defendants’ practice of selling guns free from federal regulations by

disassembling them into gun kits.

It has also put other manufacturers on

notice that such sales practices may be considered negligence for which they

68. No. 95-3323 (E.D.N.Y. Apr. 1, 1998) (on file with author). For a detailed analysis of this

unreported case, see generally Timothy D. Lytton, Halberstam v. Daniel and the Uncertain Future

of Negligent Marketing Claims Against Firearms Manufacturers, 64 B

ROOK. L. REV. 681 (1998).

69. Lytton, supra note 68, at 686.

70. 18 U.S.C. § 921(a)(29)(B).

71. Lytton, supra note 30, at 252.

72. Lytton, supra note 68, at 695.

73. Lytton, supra note 30, at 252.

74. Lytton, supra note 68, at 695.

75. Id. at 695 & n.78.

76. Id. at 695.

77. Id. at 687.

78. Id.

79. Id. at 697–98. At trial, the defendants produced an affidavit and a deposition by the

criminal assailant in which he stated that he had purchased the gun from someone on the street and

that he had never had any business dealings with the defendants. Id. at 696.

80. Lytton, supra note 30, at 253.

81. Timothy D. Lytton, Lawsuits Against the Gun Industry: A Comparative Institutional

Analysis, 32 C

ONN. L. REV. 1247, 1272 (2000).

2008] Using Tort Litigation to Enhance Regulatory Policy 1849

could be held liable where there is a close connection between the sale and

misuse of a gun.

The threat of tort liability can provide individuals and corporations with

a powerful incentive to comply with regulations where enforcement

resources are limited.

For example, each year the BATFE is able to inspect

only a fraction of the tens of thousands of licensed gun dealers, and the

agency is limited by statute to one unannounced audit of a dealer in any

given year.

Tort liability based on violation of federal sales regulations

provides an added incentive for dealers to comply with the law, even if they

are unlikely to be inspected by the BATFE.

Because tort litigation is for the most part a matter of state law,

regulation through litigation is a decentralized approach to regulation.

One

advantage of a decentralized approach to regulation is that it provides

opportunities to test different regulatory strategies in different

jurisdictions

—for states to serve as “laboratories” for policy innovation.

The major disadvantages are lack of accountability, uniformity, predict-

ability, and federal agency expertise.

Gun regulation has traditionally been

a mix of national mandates and state and local measures. By focusing att-

ention on gun designs and gun-industry marketing practices and by

generating new policy-relevant information, gun litigation has contributed to

state and local policy experimentation.

B. Clergy-Sexual-Abuse Litigation

Clergy-sexual-abuse litigation includes thousands of lawsuits across the

country, spanning more than twenty years from the mid-1980s to the present.

I will focus here on three cases that each played a significant role within the

82. See Lytton, supra note 68, at 705 (“In exceptional cases, selling firearms may be considered

a substantial factor in bringing about injuries resulting from criminal misuse of a gun.”). The

practice of selling gun kits has not entirely ceased. The author found an AR15 rifle kit for Internet

auction on BuySellGuns.com on September 21, 2007.

83. This discussion of enforcement draws on Lytton, supra note 30, at 263–64.

84. Id. at 263.

85. This discussion of federalism draws on id. at 264.

86. Id.

87. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It

is one of the happy incidents of the federal system that a single courageous state may, if its citizens

choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest

of the country.”).

88. Lytton, supra note 30, at 264; see also P

ETER H. SCHUCK, THE LIMITS OF LAW: ESSAYS ON

DEMOCRATIC GOVERNANCE 363–64 (2000) (discussing reasons why common law policy making

can be problematic).

89. See Lytton, supra note 30, at 262–64, 269 (explaining how the information acquired by

gun-litigation plaintiffs during discovery can serve to enhance legislative regulation and

administrative oversight of the industry); S

CHUCK, supra note 88, at 364–65 (emphasizing the

innovation in policy that may result from tort litigation).

1850 Texas Law Review [Vol. 86:1837

history of clergy-sexual-abuse litigation and can be used to illustrate the

influence of this litigation on policy making.

In the summer of 1983, it came to light that Father Gilbert Gauthe had

sexually abused dozens of children in a small parish near Lafayette,

Louisiana, where he served as the local priest.

One family, the Gastals,

refused the diocese’s offer of a confidential settlement and, in 1984, filed suit

against Gauthe and his superiors.

Alleging theories of respondeat superior

and negligent supervision, the Gastals won a $1.25 million verdict against the

diocese.

The diocese appealed, and the parties eventually settled for $1

million.

Prior to the Gauthe case, incidents of clergy sexual abuse were viewed

as rare and isolated occurrences, and they attracted limited local press

coverage or, more often, no press coverage at all. The Gastals’ civil suit

against Gauthe and the Diocese of Lafayette was the first case of clergy

sexual abuse to attract national attention, and in conjunction with concurrent

cases around the country, it created the impression of a pervasive, nationwide

problem. The Gauthe litigation inspired victims around the country to come

forward and, in increasing numbers, to file lawsuits.

It also caught the

attention of bishops around the country, who began for the first time as a

group to discuss the problem and explore ways to address it.

In 1992, the Diocese of Fall River, Massachusetts settled claims of

sexual abuse by Father James Porter with sixty-eight victims for an

undisclosed sum—reported in the Boston Globe as “at least $5 million.”

This was, to date, the largest group settlement of sexual-abuse claims against

the Church.

But this was not the end of the story. The diocese

90. The following discussion of the Gauthe, Porter, and Geoghan cases draws on Timothy D.

Lytton, Clergy Sexual Abuse Litigation: The Policymaking Role of Tort Law, 39 C

ONN. L. REV.

809, 815–17, 823 (2007) [hereinafter Lytton, Clergy Sexual Abuse]. The language in the next nine

paragraphs appears in id. For a more complete history, see generally L

YTTON, supra note 12, at 13–

41; L

EON J. PODLES, SACRILEGE: SEXUAL ABUSE IN THE CATHOLIC CHURCH (2007) (providing a

history of clergy sexual abuse).

91. See

JASON BERRY, LEAD US NOT INTO TEMPTATION: CATHOLIC PRIESTS AND THE SEXUAL

ABUSE OF CHILDREN 14–15, 18, 25–26 (1992) (detailing the events in which Gauthe’s sexual abuse

came to light).

92. Id. at 23–26.

93. Petition for Damages ¶¶ 21–22, Gastal v. Hannan, No. 84-48175 (La. 15th Dist. June 27,

1984) (on file with author); see also Lytton, Clergy Sexual Abuse, supra note 90, at 815 (discussing

id.).

94. B

ERRY, supra note 91, at 168. For a detailed account of the case, see generally id. at 148–

68; J.

MINOS SIMON, LAW IN THE CAJUN NATION 134–63 (1993).

95. Evidence of increased litigation following the Gauthe case is largely anecdotal and based on

interviews with plaintiffs’ attorneys and victim advocates. See L

YTTON, supra note 12, at 14–19)

(discussing the “first wave” of sexual abuse lawsuits against the Catholic Church). For limited

aggregate data suggesting an increase in litigation during this period, see id. at 49–54.

96. Id. at 14–17.

97. Stephen Kurkjian, 68 Victims Settle Porter Case with Catholic Church, B

OSTON GLOBE,

Dec. 4, 1992, at 1.

98. Id.

2008] Using Tort Litigation to Enhance Regulatory Policy 1851

subsequently settled another thirty-three claims for undisclosed sums.

The

total number of Porter’s victims is estimated at well over 100—some put the

total closer to 200—abused over a fourteen-year period from 1960–1974, in

five parish assignments in Massachusetts, Minnesota, New Mexico, and

Texas.

100

The Porter case attracted widespread media attention, led to a dramatic

increase in the number of victims willing to come forward, and stimulated

further litigation against the Church. Parallels with the Gauthe case were

inescapable. The Porter case fueled perceptions among victims and

plaintiffs’ attorneys of an organized conspiracy among the bishops to protect

child molesters and to conceal the widespread problem of clergy sexual

abuse within the Church.

101

For their part, Church officials pledged to

formulate more effective policies to prevent child sexual abuse by clergy and

to respond more openly when it occurred.

102

In 2002, litigation against the Boston archdiocese for sexual abuse

committed by Father John Geoghan became a symbol for the clergy-sexual-

abuse scandal. The archdiocese had quietly settled the claims of over fifty of

Geoghan’s victims in the late 1990s for over $10 million,

103

and in 2002, it

entered into a highly publicized settlement with an additional eighty-six

victims for another $10 million.

104

What distinguished the Geoghan case from its predecessors was the

astounding scope of the abuse and the cover-up. In the end, 200 Geoghan

victims, molested over a thirty-three year period, filed claims, and experts

estimate that the total number of Geoghan’s victims could be as high as

800.

105

Diocesan personnel files show that Church officials were aware of

Geoghan’s misconduct, failed to report it or notify parishioners, and

repeatedly reassigned him to positions where he would have access to

children.

106

The cover-up implicated no less than six bishops and ultimately

forced Cardinal Bernard Law, the highly influential Archbishop of Boston, to

step down and seek refuge in Rome.

107

The wave of litigation initiated by the

Geoghan affair turned out to be a tidal wave that swept the country from

Boston to Los Angeles.

99. Survivor Connections, Chronology: Frank Fitzpatrick vs. Father Porter, http://www.

Survivor connections.net/flfvsporter.html.

100. These and other details of the case can be found in E

LINOR BURKETT & FRANK BRUNI, A

GOSPEL OF SHAME: CHILDREN, SEXUAL ABUSE, AND THE CATHOLIC CHURCH 8–24 (1993).

101. L

YTTON, supra note 12, at 25.

102. Id. at 24–25.

103. Michael Rezendesz, Church Allowed Abuse by Priest for Years, B

OSTON GLOBE, Jan. 6,

2002, at A1.

104. Walter V. Robinson & Michael Rezendesz, Geoghan Victims Agree to $10M Settlement,

OSTON GLOBE, Sept. 19, 2002, at A1.

105. I

NVESTIGATIVE STAFF, BOSTON GLOBE, BETRAYAL: THE CRISIS IN THE CATHOLIC

CHURCH 6, 14–16, 27 (2002) [hereinafter BETRAYAL].

106. Id. at 3, 14, 23, 26.

107. Id. at viii, x, 3, 14, 22, 24, 205–06.

1852 Texas Law Review [Vol. 86:1837

Litigation played a major role in framing clergy sexual abuse as an

institutional failure on the part of Catholic Church officials rather than

merely a problem of individual priests. The Gastals’ complaint in the Gauthe

case named well-known Church officials and institutions. While the

complaint included allegations against Father Gauthe himself, the most

detailed allegations were against Church officials, whom the plaintiffs

asserted “made possible” the abuse by Gauthe by failing to remove him from

ministry or inform parishioners even after the officials knew of his repeated

sexual abuse of children.

108

The plaintiffs further alleged that “[C]hurch

officials made a studied effort to conceal and withhold . . . information

concerning Gauthe’s misconduct from members and families of the

[C]hurch,” and that Church officials, “having full knowledge . . . of his

tendencies to sexually abuse young children,” moved him from one parish to

another.

109

In doing so, the complaint concluded that Church officials

“knowingly created an environment which operated to maximize

opportunities for Gauthe to further wantonly sexually abuse innocent young

children.”

110

The complaint also referred to Church officials as “corporate

officers,” suggesting corporate wrongdoing and cover-up.

111

Early local press coverage of the case, relying heavily on the complaint

and interviews with the plaintiffs’ attorney, adopted this frame of

institutional responsibility, as did subsequent regional and national press

coverage.

112

This pattern was repeated and magnified in the Porter and

Geoghan cases.

113

As the scandal developed, some blamed it on a few “bad

apples” within the priesthood, tolerance for homosexuality in the Church,

anti-Catholic bias in the media, or money-hungry plaintiffs’ lawyers.

114

The

frame of institutional responsibility, however, has predominated in press

coverage and popular opinion.

115

Even Church officials, in their public

comments, have often framed the issue in terms of institutional

responsibility.

116

Litigation has also generated information about clergy sexual abuse

within the Church. Discovery has uncovered and made public the identities

of individual abusers as well as techniques used by Church officials to

108. Petition for Damages, supra note 93, ¶ 23.

109. First Supplemental and Amended Petition ¶ 5, Gastal v. Hannan, No. 84-48175-A (La.

15th Dist. Oct. 25, 1984) (on file with author).

110. Id.

111. Petition for Damages, supra note 93, ¶ 23(l)–(m).

112. See Lytton, Clergy Sexual Abuse, supra note 90, at 824–28 (describing press coverage of

the Gauthe case).

113. See id. at 821–31 (describing press coverage of the Porter and Geoghan cases).

114. Id. at 830, 845.

115. Id. at 832.

116. See id. at 872–75 (describing public comments from Church officials acknowledging the

institutional responsibility of the Church for clergy sexual abuse). For extensive evidence of these

framing effects of clergy-sexual-abuse litigation, see generally L

YTTON, supra note 12, at 91–107.

2008] Using Tort Litigation to Enhance Regulatory Policy 1853

conceal this information—such as keeping records related to abuse in secret

files mandated by canon law or invoking the doctrine of mental reservation

to justify incomplete or misleading answers in depositions.

117

Publicity

surrounding litigation has also encouraged many victims to come forward for

the first time with allegations of abuse.

118

Beyond discovery, litigation has also prompted Church officials, law

enforcement, and activists to investigate and publish reports on clergy sexual

abuse. Public concern, especially among Catholics, raised by the Geoghan

case and the subsequent wave of litigation, led the U.S. Conference of

Catholic Bishops (USCCB) in 2002 to commission the most comprehensive

study to date of clergy sexual abuse within the Catholic Church. The study,

entitled The Nature and Scope of Sexual Abuse of Minors by Catholic Priests

and Deacons in the United States 1950–2002, examines the prevalence of

clergy sexual abuse in the Catholic Church, the demographics of perpetrators

and victims, the types and circumstances of abuse, responses to the abuse by

Church and civil authorities, and the financial costs of claims against the

Church.

119

The study’s findings are based on survey responses from

diocesan officials, and they represent a significant disclosure of information

contained in diocesan files and secret archives.

120

The report also includes an

extensive literature review and annotated bibliography of child sexual

abuse.

121

In addition, individual bishops around the country have launched

internal investigations and issued their own reports with regular updates on

clergy sexual abuse within their dioceses.

122

Litigation has also prompted grand jury and state-attorney-general

investigations into clergy sexual abuse that have produced extensive local

reports on clergy sexual abuse. For example, in the wake of the Geoghan

117. See id. at 147–52 (outlining the various techniques used by the church to frustrate

discovery).

118. See, e.g., id. at 25 (discussing how the Porter case led many new victims to come forward).

119. J

OHN JAY COLL. OF CRIMINAL JUSTICE, THE NATURE AND SCOPE OF SEXUAL ABUSE OF

MINORS BY CATHOLIC PRIESTS AND DEACONS IN THE UNITED STATES 1950–2002 (2004)

[hereinafter J

AY STUDY]. For a summary and analysis of this report’s findings, see generally

YTTON, supra note 12, at 42–54.

120. J

AY STUDY, supra note 119, at 13–14.

121. Id. at 153–285.

122. See, e.g., A

RCHDIOCESE OF CHICAGO, TEN YEAR REPORT ON CLERICAL SEXUAL ABUSE

MINORS IN THE ARCHDIOCESE OF CHICAGO JANUARY 1, 1993–JANUARY 16, 2003 (2003),

available at http://www.archchicago.org/pdf/ten_year_report.pdf; A

RCHDIOCESE OF LOS ANGELES,

REPORT TO THE PEOPLE OF GOD: CLERGY SEXUAL ABUSE, ARCHDIOCESE OF LOS ANGELES 1930–

2003 (2004), available at http://www.bishop-accountability.org/usccb/natureandscope/dioceses/

reports/losangelesca-rpt.pdf; A

RCHDIOCESE OF LOS ANGELES, ADDENDUM TO THE REPORT TO THE

PEOPLE OF GOD (2005), available at http://www.archdiocese.la/protecting/pdf/Addendum-11-15-

05.pdf; Statement of Archbishop Sean P. O’Malley, Regarding Clergy Sexual Abuse in the

Archdiocese of Boston from 1950–2003 (Feb. 26, 2004), available at http://www.rcab.org/ News/

releases/2004/statement040226.html; Press Release, U.S. Conference of Catholic Bishops, USCCB

Efforts to Combat Clergy Sexual Abuse Against Minors: A Chronology 1982–2006, available at

http://www.usccb.org/comm/combatefforts.shtml.

1854 Texas Law Review [Vol. 86:1837

case, Massachusetts attorney general Thomas Reilly conducted an

investigation and published a report on clergy sexual abuse within the Boston

archdiocese.

123

One of the report’s chief findings was that “[w]idespread

sexual abuse of children was due to an institutional acceptance of abuse and a

massive and pervasive failure of leadership.”

124

Litigation has promoted the generation of information not only among

bishops and government officials but also by victims, lawyers, and activists

who were mobilized by the litigation. These groups have collected and

organized vast amounts of existing information and made it publicly

accessible on the Internet. For example, the BishopAccountability.org Web

site contains over 25,000 news articles, thousands of documents from

diocesan archives, twenty-five reports, and its own database of over 3,000

accused priests and other Church personnel, searchable by name, diocese,

and state.

125

Litigation placed clergy sexual abuse on the policy agendas of Church

and government policy makers.

126

In response to the Gauthe case and the

growing revelation of a nationwide problem, the National Council of

Catholic Bishops (NCCB) (a precursor organization to the USCCB)

dedicated an executive session at its June 1985 meeting to examine the

psychological, legal, and moral aspects of clergy sexual abuse within the

Church.

127

The bishops also considered nonbinding recommendations for

how individual dioceses could best respond to the problem, and they charged

the Committee on Priestly Life & Ministry to undertake further consideration

of the matter.

128

Following the meeting, NCCB staff conducted research on

123. THOMAS F. REILLY, OFFICE OF THE ATT’Y GEN., THE SEXUAL ABUSE OF CHILDREN IN

THE

ROMAN CATHOLIC ARCHDIOCESE OF BOSTON (2003), available at http://www.bishop-

accountability.org/resources/resource-files/reports/ReillyReport.pdf.

124. Id. at 25 (emphasis omitted). Other findings included that Church officials: (1) “knew the

extent of the clergy-sexual-abuse problem for many years before it became known to the public,”

(2) “did not notify law enforcement authorities of clergy sexual abuse allegations,” (3) “did not

provide all relevant information to law enforcement authorities during criminal investigations,” (4)

“failed to conduct thorough investigations of clergy sexual abuse allegations,” (5) “placed children

at risk by transferring abusive priests to other parishes,” (6) “placed children at risk by accepting

abusive priests from other dioceses,” and (7) “failed to adequately supervise priests known to have

sexually abused children.” Id. at i–ii (emphasis omitted).

125. BishopAccountability.org, Catholic Priest Sex Abuse Archive, http://www.bishop-

accountability.org. For an extensive review of the information generated by clergy-sexual-abuse

litigation, see L

YTTON, supra note 12, at 158–60.

126. These three paragraphs draw on L

YTTON, supra note 12, at 125–26. The information in

this paragraph relies on detailed accounts in B

ERRY, supra note 91, at 96–102, 110–12; JASON

BERRY & GERALD RENNER, VOWS OF SILENCE: THE ABUSE OF POWER IN THE PAPACY OF JOHN

PAUL II, at 48 (2004); BETRAYAL, supra note 105, at 39; BURKETT & BRUNI, supra note 100, at

164, 173; D

AVID FRANCE, OUR FATHERS: THE SECRET LIFE OF THE CATHOLIC CHURCH IN AN AGE

SCANDAL 230 (2004); Interview with Mark E. Chopko, General Counsel, U.S. Conference of

Catholic Bishops (Mar. 22, 2006) (on file with author); Press Release, U.S. Conference of Catholic

Bishops, supra note 122.

127. Press Release, U.S. Conference of Catholic Bishops, supra note 122.

128. Id.; see also Lytton, Clergy Sexual Abuse, supra note 90, at 863.

2008] Using Tort Litigation to Enhance Regulatory Policy 1855

the spread of litigation, addressing clergy sexual abuse around the country.

NCCB staff also helped dioceses develop training programs to prevent child

abuse, policies for reporting it, and protocols for assisting victims and their

families.

129

Some individual bishops took it upon themselves to investigate

abuse in their own dioceses, issue reports, and create new procedures for

dealing with claims.

130

The Porter case in 1992 put the issue of clergy sexual abuse back at the

top of the NCCB’s agenda. At their June meeting that year, the bishops

dedicated most of their eight-hour closed executive session to the question of

whether priests who had sexually abused children should be allowed to return

to ministry.

131

At their November meeting later that year, the bishops

formally endorsed a nonbinding set of principles to guide bishops’ responses

to clergy sexual abuse.

132

A year later, at their June 1993 meeting, the

bishops issued public statements of remorse, created an ad hoc subcommittee

on sexual abuse, and adopted a brief nonbinding resolution pledging an

“appropriate and effective” response to the problem.

133

As in the wake of the

1985 Collegeville meeting, the issue continued to receive attention in

committees and individual dioceses.

134

If clergy sexual abuse first appeared on the NCCB agenda in 1985 and

rose to the top of it in 1992 and 1993, it is fair to say that it completely

dominated the bishops’ agenda in 2002. The Geoghan case and its aftermath

concerned the bishops throughout the year. In fact, the only item on the

agenda for the June 2002 meeting in Dallas was clergy sex abuse.

135

After

highly publicized proceedings, the bishops adopted a Charter for the

Protection of Children & Young People, a binding policy that proclaimed

“zero tolerance” for clergy sexual abuse within the Church.

136

The Charter

created lay review boards in each diocese to assess claims and make

recommendations to the bishop; a National Review Board charged with

overseeing compliance with the policy and commissioning a comprehensive

129. Id.

130. B

URKETT & BRUNI, supra note 100, at 173.

131. Id. at 173–74.

132. See S

TEPHEN J. ROSSETTI, A TRAGIC GRACE: THE CATHOLIC CHURCH AND CHILD

SEXUAL ABUSE 14 (1996) (discussing the November meeting of bishops); Harry J. Flynn, Dallas

and Beyond: Perspectives of a Bishop and Pastor, in S

EXUAL ABUSE IN THE CATHOLIC CHURCH:

TRUSTING THE CLERGY? 13, 15 (Marie M. Fortune & W. Merle Longwood eds., 2003) (outlining

the five principles that were proposed by the meeting of bishops).

133. F

RANCE, supra note 126, at 230–31.

134. See P

ETER STEINFELS, A PEOPLE ADRIFT: THE CRISIS OF THE ROMAN CATHOLIC CHURCH

AMERICA 50–52, 56–61 (2003) (detailing the committee approach taken by the Catholic Church

in its response to the clergy-sexual-abuse scandals of the early 1990s); Flynn, supra note 132, at 15–

17 (“[D]uring the years when most national media found little interest in the issue of sexual abuse

of minors by clergy, dioceses were continuing to confront this problem . . . .”).

135. See F

RANCE, supra note 126, at 362.

136. See Raymond O’Brien, Clergy, Sex and the American Way, 31 P

EPP. L. REV. 363, 408–09

(2004) (discussing the adoption of the Charter and its “goal of zero-tolerance”).

1856 Texas Law Review [Vol. 86:1837

study of the problem; and an Office of Child and Youth Protection to assist

with implementation of the policy.

137

Subsequent revisions to the Charter

and Norms demanded by the Vatican, ongoing debate over its provisions and

implementation, and publication of the comprehensive study have maintained

clergy sexual abuse on the USCCB’s agenda.

138

Individual bishops in their

dioceses have also implemented additional reforms.

139

Litigation also placed clergy sexual abuse on the agendas of law

enforcement officials.

140

Tort litigation against the Church and the public

concern it generated increased efforts to investigate and prosecute clergy

sexual abuse.

141

Of course, it would be a gross overstatement to suggest that

in all cases civil litigation was responsible for increased investigation and

prosecution. Indeed, in some cases, secrecy agreements in civil settlements

proved to be a hindrance to enforcement and prosecution. Nevertheless,

there is evidence that civil litigation placed clergy sexual abuse on the

agendas of many law enforcement officers and agencies.

142

Accounts of high-profile cases offer anecdotal evidence that tort

litigation increased criminal investigation and prosecution of clergy sexual

abuse. For example, the plaintiffs’ attorney in the Gauthe case, J. Minos

Simon, suggests that District Attorney Nathan Stansbury was reluctant to

prosecute Gauthe, and that press coverage of the civil suits provided the

pressure, or at least the cover, necessary to proceed against the Church.

143

the Porter case, plaintiffs’ attorney Eric MacLeish’s use of the press, without

even filing a formal complaint, provided essential pressure for prosecution of

James Porter by the local district attorney.

144

Having been rebuffed by the

district attorney more than once, several Porter victims came to MacLeish,

who helped them attract media coverage of their story in leading media

137. Id. at 423–28.

138. Id. at 408–46.

139. See A Look at the Impact of the Roman Catholic Sex Abuse Scandal on the States,

OSTONGLOBE.COM, Apr. 27, 2002, http://www.boston.com/news/daily/27/church_abuse_glance.

htm (detailing incidents and responses in the fifty states); see also, e.g., D

IOCESE OF MANCHESTER,

DIOCESAN TASK FORCE ON SEXUAL MISCONDUCT POLICY: REPORT TO THE BISHOP OF

MANCHESTER (2003), available at http://www.bishop-accountability.org/resources/resource-files/

reports/ManchesterTaskForceReport.pdf (making recommendations on reforming the diocese’s

sexual-misconduct policy).

140. These two paragraphs draw on Lytton, Clergy Sexual Abuse, supra note 90, at 867–68.

The language in this particular paragraph appears in id. at 867.

141. Id.

142. Id.

143. See SIMON, supra note 94, at 137, 141 (describing Stansbury’s desire to preserve the

established order of things and his failure to allow a grand jury to review the evidence until after

Simon’s clients went public and news reports appeared). But see B

ERRY, supra note 91, at 20, 25,

49–50, 118–19, 121–24 (portraying Stansbury as pursuing a prompt and vigorous prosecution based

on his own desire to see Gauthe punished for his crimes).

144. The rest of this paragraph relies on F

RANCE, supra note 126, at 208–11, 215, and

URKETT & BRUNI, supra note 100, at 13–17. Language in this paragraph appears in Lytton,

Clergy Sexual Abuse, supra note 90, at 868.

2008] Using Tort Litigation to Enhance Regulatory Policy 1857

venues such as the New York Times, Newsweek, People, Primetime Live, 60

Minutes, Geraldo, The Oprah Winfrey Show, The Phil Donahue Show, and

Sally Jessy Raphael.

145

With an entourage of press, the victims then filed a

complaint with the local police.

146

Ten days later, the district attorney

launched an investigation that eventually culminated in the prosecution and

conviction of Porter.

147

The Geoghan litigation, as we have seen, prompted

grand jury and state-attorney-general investigations. Civil litigation and the

public outrage it sparked eroded law enforcement officials’ traditional

reluctance to offend local Church officials and led to the criminal

investigations and prosecutions.

148

Litigation has also prompted state legislatures to fill perceived gaps in

laws aimed at protecting children from sexual abuse and punishing those

responsible. State legislatures have taken up proposals to extend or eliminate

statutes of limitation for child sexual abuse, remove clergy exemptions to

mandatory child-abuse-reporting laws, create child-endangerment provisions

that would make diocesan supervisors criminally liable for assigning known

abusers to positions where they will have access to children, and remove civil

damage caps for charitable organizations in cases of sexual abuse.

149

While

some of these proposals have fared better than others, they are powerful

evidence that clergy abuse was placed on state legislative agendas in

response to the wave of media coverage and public concern in 2002

following the Geoghan case.

Litigation has encouraged self-regulation by Church officials,

prompting new policies aimed at preventing abuse before it occurs and

reporting it after it happens. These policies have been developing over time,

starting with responses to the Gauthe case in 1985 and culminating in the

2002 Dallas Charter.

150

The Charter requires all dioceses to establish “safe

environment” programs designed to educate children, parents, clergy,

educators, and volunteers about child sexual abuse.

151

A 2005 USCCB audit

found that 90% of dioceses had established safe-environment programs and

had trained over 7 million people, including 5.7 million children.

152

145. Lytton, Clergy Sexual Abuse, supra note 90, at 868.

146. B

URKETT & BRUNI, supra note 100, at 14–15.

147. Id. at 15.

148. P

HILIP JENKINS, PEDOPHILES AND PRIESTS: ANATOMY OF A CRISIS 36, 48 (1996).

149. See, e.g., Jesse Belcher-Timme, Note, Unholy Acts: The Clergy Sex Scandal in

Massachusetts and the Legislative Response, 30 N

EW ENG. J. ON CRIM. & CIV. CONFINEMENT 243,

270–72 (2004) (describing various state policy initiatives designed to prevent future clergy sexual

abuse). For a more detailed discussion, see L

YTTON, supra note 12, at 132.

150. U.S.

CONFERENCE OF CATHOLIC BISHOPS, CHARTER FOR THE PROTECTION OF CHILDREN

AND

YOUNG PEOPLE (2002), available at http://www.usccb.org/bishops/charter_final.pdf.

151. Id. at 15.

152. U.S.

CONFERENCE OF CATHOLIC BISHOPS, REPORT ON THE IMPLEMENTATION OF THE

CHARTER FOR THE PROTECTION OF CHILDREN AND YOUNG PEOPLE 17–19 (2006), available at

http://www.usccb.org/ocyp/OCYPREPORT.pdf. For a more extensive analysis of the Church’s

internal efforts to respond to clergy sexual abuse, see L

YTTON, supra note 12, at 172–76.

1858 Texas Law Review [Vol. 86:1837

addition to safe-environment programs, litigation has prompted the bishops

and the Vatican to exclude candidates for the priesthood whom they believe

pose a high risk of committing child sexual abuse. In June 2005, the bishops

adopted revised guidelines on priestly formation that exclude seminary

applicants with any history of sexual abuse of minors, require close attention

to a candidate’s past, and emphasize the need to foster a strong commitment

to celibacy.

153

Litigation and the policy responses to it have given rise to a variety of

different approaches to addressing clergy sexual abuse. This decentralization

is a good example of the virtues of federalism, enabling dioceses to

experiment with different prevention and treatment programs, and states to

implement different reform measures such as extending or suspending

statutes of limitation or eliminating mandatory reporting exclusions. The

opportunity to test out these approaches and compare them across

jurisdictions is likely to generate important insights in the search for the most

effective means of addressing child sexual abuse within religious as well as

secular institutions.

IV. The Conditions That Favor Regulation Through Litigation

So far, I have highlighted the positive impact of gun-industry and

clergy-sexual-abuse litigation on policy making in terms of framing,

information generation, agenda setting, gap-filling, encouraging self-

regulation, and federalism. I do not, however, wish to overstate the case for

regulation through litigation. Like all policy tools, litigation works better in

some contexts than in others. By comparing the results of gun-industry and

clergy-sexual-abuse litigation—taking into account both their shortcomings

and their achievements—we can identify several conditions that favor the use

of litigation as a policy tool.

Consider first the results of gun litigation. While gun litigation

reinforced the framing of gun violence as an industry problem best addressed

through safety improvements in gun design and marketing restrictions,

public-health advocates had been promoting that frame for many years

before the first lawsuits were filed in the early 1980s.

154

Moreover, public

discussion of government regulation of gun designs dates back at least to

1972 when Congress explicitly exempted gun designs from federal regulation

by the Consumer Products Safety Administration,

155

and federal efforts to

address gun violence through marketing restrictions date back even further to

153. Jerry Filteau, New, Stricter Priestly Formation Program Issued for U.S. Catholic

Seminaries, C

ATHOLIC ONLINE, Aug. 29, 2006, http://www.catholic.org/ national/national_story.

php?id=21058.

154. See supra notes 40–46 and accompanying text.

155. See Pub. L. No. 92-573, § 3, 86 Stat. 1208 (1972) (codified as amended at 15 U.S.C.

§ 2052(a)(1)(E) (2000)) (excluding firearms and ammunition from the definition of the term

“consumer product”).

2008] Using Tort Litigation to Enhance Regulatory Policy 1859

a 1927 law prohibiting the sale of handguns through the mail,

156

followed by

the National Firearms Act of 1934

157

and the Federal Firearms Act of

1938.

158

While litigation emphasized themes of victim’s rights, corporate

misconduct, and public health in the framing of gun violence, these themes

have hardly eclipsed the powerful Second Amendment and self-defense

rhetoric of gun-rights advocates. If anything, gun litigation has coincided

with increasing interest in the question of whether the Second Amendment

guarantees an individual right to own a gun.

159

The rhetoric of gun rights

featured prominently in successful gun-lobby efforts to obtain statutory

immunity from tort liability in state legislatures and Congress.

160

Litigation

has done little to deflate the role of Second Amendment rhetoric in gun-

control debates, and it may well have helped to draw attention to it.

One should also be careful not to overstate the importance of

information uncovered by the litigation. While the Colt smart-gun

memorandum revealed that the company failed to disclose just how far along

it was in developing a smart gun, it also showed that the company was eager

to design one and capitalize on the market for it.

161

Colt can hardly be

blamed for conducting product research and development in a way designed

to maintain its competitive advantage and maximize the return on its

investment. The Ricker affidavit suggests at most that gun-industry

executives knew of and did nothing to prevent irresponsible sales practices

farther down the distribution chain and that they knowingly profited from

these practices.

162

While this information is significant, it is hardly a

smoking gun that establishes a manufacturer conspiracy to promote gun

trafficking. It shows instead complicity, which is no big surprise to gun-

control advocates, regulators, or policy makers.

163

As for the agenda-setting effects of gun litigation, opponents of

regulation capitalized more effectively on this aspect of the litigation than did

advocates of safer gun designs and stricter marketing restrictions. Securing

legislative immunity from tort liability was a major victory for the gun lobby.

In the legislative arena, litigation was largely counterproductive.

156. Act of Feb. 8, 1927, ch. 75, 44 Stat. 1059 (codified as amended at 18 U.S.C. § 1715

(2000)).

157. 48 Stat. 1236 (1934) (codified as amended at 26 U.S.C. §§ 5801–5872 (2000)).

158. 52 Stat. 1250 (1938) (repealed 1968).

159. John Gibeaut, A Shot at the Second Amendment, A.B.A.

J., Nov. 2007, at 50, 50.

160. See, e.g., Protection of Lawful Commerce in Arms Act, Pub. L. No. 109-92, § 2(a)(1)–(2),

119 Stat. 2095 (2005) (to be codified at 15 U.S.C. § 7901) (stating in Congressional findings that

“[t]he Second Amendment to the United States Constitution protects the rights of individuals,

including those who are not members of a militia or engaged in military service or training, to keep

and bear arms”).

161. See supra notes 51–53 and accompanying text.

162. See supra notes 54–55 and accompanying text.

163. See Wagner, supra note 51, at 285–86 (describing the lack of “smoking gun” evidence in

gun litigation). But see Rostron, supra note 56, at 489–93 (noting that “significant incriminating

evidence” has begun to emerge through the course of gun litigation).

1860 Texas Law Review [Vol. 86:1837

While the Halberstam case appears to have been a successful means of

filling in the statutory gap that allowed for unrestricted sales of gun kits,

164

plaintiffs in other cases have sought to expand gun regulation in ways that

would contradict the explicit will of the legislature. For example, plaintiffs

have sought injunctions or pursued settlements that would limit individuals

to one gun purchase per month in states whose legislatures have considered

and rejected such proposals.

165

Pursuing litigation as a way to overcome

legislative rejection of regulatory measures creates competition rather than

complementarity between tort litigation and the legislative process.

Similar competition can be seen in gun litigation’s effect on

enforcement of existing regulations.

166

While the threat of liability promotes

compliance with existing sales regulations among gun dealers, at the same it

undermines time an explicit congressional mandate that those regulations not

be enforced aggressively. For example, New York City’s recent lawsuits

against out-of-state gun dealers are based on a sting operation conducted by a

private firm paid by the City that documented illegal sales practices by the

dealers.

167

Several of the dealers have settled with the City, agreeing to

supervision of their sales practices by a court-appointed special master

chosen and paid for by the City.

168

The special master will be given

unrestricted access to the dealers’ records and inventory and will be

empowered to conduct ongoing surveillance.

169

The litigation, explained

Mayor Michael Bloomberg, was designed to send a message to rogue dealers

that even if they stand little chance of getting caught by law enforcement,

they could be subject to civil suit for violations of federal law.

170

The

success of the New York City gun-dealer lawsuits should be viewed against

the backdrop of the federal Firearms Owners Protection Act of 1986

171

(FOPA), which significantly restricts the powers of the BATFE to enforce

federal gun laws because gun-rights advocates were concerned that the

bureau was using its powers to harass dealers.

172

FOPA was the product of a

seven-year legislative battle in Congress and the result of sustained

consideration, debate, and compromise.

173

New York City’s gun-dealer

lawsuit is designed to replace the federal government’s scheme of limited

164. See supra notes 68–82 and accompanying text.

165. Lytton, supra note 30, at 260–61.

166. This paragraph and the next draw on Lytton, supra note 38.

167. Id.

168. Id.

169. Id.

170. Id.

171. Pub. L. No. 99-308, 100 Stat. 449 (1986) (codified at 18 U.S.C. §§ 921–930 (2000)).

172. See David T. Hardy, The Firearms Owners’ Protection Act: A Historical and Legal

Perspective, 17 C

UMB. L. REV. 585, 606 n.118 (1986–1987) (detailing numerous Senate hearings

on abuses of enforcement powers by the BATFE).

173. Id. at 585.

2008] Using Tort Litigation to Enhance Regulatory Policy 1861

enforcement with one of vigorous enforcement—paid for by the City of New

York and enforced by a federal judge.

174

Finally, federalism in gun policy has led not only to local

experimentation but also to a measure of local conflict. For example,

Chicago’s lawsuit against the gun industry was based on allegations that

legal gun sales in surrounding suburbs to Chicago residents undermined the

City’s gun ban and resulted in gun violence, which the City characterized as

a public nuisance.

175

The City demanded injunctive relief in the form of

marketing restrictions on suburban dealers designed to limit the flow of guns

into the city.

176

Just as the suburban governments’ desire to permit easy

access to guns undermined the City’s ban, the City’s suit, had it been

successful, would have imposed the City’s more stringent gun-control

regulations on the surrounding suburban governments.

By contrast, clergy-sexual-abuse litigation appears to have had a greater

impact and more positive influence on policy making. While plaintiffs may

not have been the first to frame clergy sexual abuse as an institutional

problem, they were to the first to demand publicly that Church officials be

held responsible for it. Clergy-sexual-abuse litigation shattered decades of

near-universal silence about a social problem of shocking depravity and

scope. Prior to the Gauthe case in 1984, what little knowledge there was of

clergy sexual abuse was not openly discussed or addressed by victims, their

families, fellow parishioners, clergy, Church officials, therapists, the press,

lawyers, law enforcement, or legislators. Local media reporting of sexual

abuse by clergy was scant and infrequent, and there was no national media

coverage of the issue. Prosecutions were rare and public discussion and

policy debate nonexistent. Litigation was the primary force in attracting

attention to the problem, shaping perceptions of it, and making it a policy

priority among Church and government officials. The framing and agenda-

setting effects of clergy-sexual-abuse litigation on policy making have been

extraordinarily powerful.

Until recently, clergy-sexual-abuse litigation has not always encouraged

information generation. Plaintiffs’ lawyers, especially in years prior to the

Geoghan affair, frequently opted for settlements that included secrecy

agreements, making it even less likely that information about allegations

would ever be disclosed. Nevertheless, most of what is known about clergy

sexual abuse is the product of civil discovery or investigations by Church and

government officials, prompted by widespread public concern that was

generated by litigation. In the absence of litigation, it is unlikely that the

nature and scope of the problem would have come to light.

174. Lytton, supra note 38.

175. City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1106 (Ill. 2004).

176. Id. at 1132.

1862 Texas Law Review [Vol. 86:1837

The effectiveness of self-regulation instituted by dioceses—in

particular, of safe-environment programs and screening procedures—is still

unclear. According to victim–advocate David Clohessy,

The Church reforms have been largely smoke and mirrors . . . . The

bishops have hired these so-called audit teams. So it’s like the

bishops have basically drawn up the rules for the ball game, they’ve

decided who gets to play, they’ve hired the umpires and—lo and

behold, surprise, surprise—they say that they’re winning.

177

The National Review Board has recently begun to study the effectiveness of

the Church’s voluntary reform efforts.

178

As we have seen, gun litigation might be criticized for attempting, in

some cases, to advance policies rejected by legislatures—for example, one-

gun-per-month sales restrictions. I have suggested that this is not so much

gap-filling as circumventing the legislative process altogether. It would be

much harder to criticize clergy-sexual-abuse litigation on this basis. When

clergy-sexual-abuse plaintiffs and their attorneys sought to advance policies

clearly at odds with existing legislation, they directed their efforts at the

legislative process. For example, victims and plaintiffs’ attorneys played a

central role in the lobbying campaign to suspend the statute of limitations for

child-sexual-abuse claims in California.

179

Elsewhere, they have participated

in similar efforts to extend or eliminate statutes of limitations for child sexual

abuse, end clergy exemptions to mandatory child-abuse-reporting laws,

create child-endangerment provisions that would make diocesan supervisors

criminally liable, and remove civil damage caps for charitable organizations

in cases of sexual abuse.

180

And finally, unlike gun litigation, clergy-sexual-abuse litigation does

not create interjurisdictional conflict. More stringent laws or enforcement

practices in one jurisdiction do not interfere with approaches in other

jurisdictions that grant greater leeway to Church officials to resolve the

problem internally.

Based on the foregoing analysis of their achievements and

shortcomings, I think it fair to conclude that, compared to gun litigation,

clergy-sexual-abuse litigation offers a more attractive example of regulation

through litigation. Gun litigation played a relatively small role in a larger

gun-control movement that preceded it by decades. And while the litigation

focused attention on the role of the gun industry in facilitating gun violence,

177. See LYTTON, supra note 12, at 174–75.

178. Id. at 175.

179. See Laurie Goodstein, California Dioceses Brace for New Abuse Suits as Law Allows

Litigation of Old Cases, N.Y.

TIMES, Dec. 6, 2002, at A28 (describing the efforts of two lawyers

taking clients to legislators to describe past clergy sexual abuse).

180. See Belcher-Timme, supra note 149, at 243, 270–72 (recommending legislative changes

aimed at more effective prosecution of those involved in clergy sexual abuse and its cover-up).

2008] Using Tort Litigation to Enhance Regulatory Policy 1863

the results in terms of industry reform and government regulation have been

modest, and in some respects counterproductive.

By contrast, clergy-sexual-abuse litigation has had an especially

powerful impact on policy making. Clergy-sexual-abuse litigation initiated

widespread public concern and began the mobilization of groups that led the

call for reform. Most of what is publicly known about clergy sexual abuse

was discovered by lawyers or comes from studies and investigations that, but

for the litigation, would likely never have been undertaken. Litigation drew

attention to the role of Church officials in facilitating child sexual abuse,

placed the issue on the agendas of Church and government policy makers for

the first time, and generated pressure on them to address the problem. The

results of the litigation include a public accounting of the role of Church

officials in facilitating decades of child sexual abuse, mandatory nationwide

Church policies, and a host of law enforcement and legislative reforms.

Four features of clergy-sexual-abuse litigation help explain why it has

had such a beneficial impact on policy making.

181

First, allegations of

widespread child sexual molestation by compulsive pedophile priests

covered up at the highest levels of the Catholic Church made for an

especially scandalous narrative that fueled an unusual level of moral outrage.

Popular culture in the mid-1980s was highly receptive to this story of child

sexual abuse, clerical misconduct, and institutional responsibility. Public

awareness of child sexual abuse was fueled throughout the 1970s and 1980s

by child-welfare advocates and feminist activists.

182

Concurrent with the

Gauthe case, a series of high-profile prosecutions for ritual child sexual

abuse in daycare centers swept the nation from California to

Massachusetts.

183

The late 1980s also saw a series of popular televangelists

taken down by sexual and financial scandals.

184

Government and corporate

corruption have been recurring popular concerns throughout American

history, and the post-Watergate 1980s were no exception. The narrative of

clergy sexual abuse promulgated by plaintiffs thus had an especially high

degree of cultural resonance. Moreover, it was widely disseminated by

181. This paragraph draws on LYTTON, supra note 12, at 192.

182. See B

ARBARA J. NELSON, MAKING AN ISSUE OF CHILD ABUSE: POLITICAL AGENDA

SETTING FOR SOCIAL PROBLEMS 127 (1984) (noting that the governmental concern over child

abuse and neglect was part of “a larger social current” including civil rights, welfare rights, and

feminist movements, all of which “captured the imagination of many people”).

183. See D

EBBIE NATHAN & MICHAEL SNEDEKER, SATAN’S SILENCE: RITUAL ABUSE AND THE

MAKING OF A MODERN AMERICAN WITCH HUNT 4 (1995) (comparing the high-profile ritual-child-

sexual-abuse prosecutions of the 1980s and early 1990s to “the crusades of the McCarthy era” and

“the Salem witch trials”); D

OROTHY RABINOWITZ, NO CRUELER TYRANNIES: ACCUSATION, FALSE

WITNESS, AND OTHER TERRORS OF OUR TIMES (2003) (recounting the facts of a number of well-

known ritual-child-sex-abuse accusations and prosecutions).

184. See Anson Shupe, Economic Fraud and Christian Leaders in the United States, in

OLVES WITHIN THE FOLD: RELIGIOUS LEADERSHIP AND ABUSES OF POWER 49, 57–58 (Anson

Shupe ed., 1998) (summarizing the sexual and financial scandals surrounding prominent

televangelists Oral Roberts, Jimmy Swaggart, and Jim Bakker in the late 1980s).

1864 Texas Law Review [Vol. 86:1837

media coverage, was repeatedly invoked in ongoing litigation and public

discussion, and was ultimately adopted by Church leaders and public

officials, all of which enhanced its power to attract attention and shape

perceptions.

Second, plaintiffs’ success in litigation—in the form of judgments and

settlements—sparked national press coverage, encouraged additional victims

to come forward, and in turn fueled more litigation. This positive feedback

generated increasing momentum over time, creating what political scientists

refer to as a “cascade” in which “each change begets another even larger

change.”

185

Cascades have been studied in a variety of contexts, including

social trends, market booms and busts, and political campaigns.

186

They help

to account for how initially small events can be magnified by positive

feedback and generate the momentum to create significant change.

187

The

cascade initiated by the Gauthe case involved other types of feedback as

well. As they gained more litigation experience, plaintiffs’ lawyers became

more skilled at uncovering the information necessary to substantiate claims,

which encouraged them and other lawyers to bring more lawsuits. Plaintiffs’

success in litigation led many judges over time to be more skeptical of

Church compliance with discovery orders and to favor plaintiffs’ requests for

broad and aggressive discovery.

188

Litigation thus produced more clients,

better lawyering skills with which to pursue their claims, a growing supply of

attorneys to bring the claims, and increasing sympathy among judges.

The momentum generated by this cascade of litigation was enhanced by

other implications of plaintiffs’ successes outside of the civil justice system.

For example, the public outrage generated by clergy-sexual-abuse litigation

exerted pressure on law enforcement officials to investigate Church officials

and to prosecute wrongdoers.

189

And litigation made it politically less costly

to do so. The same is true with regard to legislative initiatives to remove

obstacles to suing the Church such as statutes of limitation and charitable

immunity. Thus, the cascade of litigation following plaintiffs’ success in the

Gauthe case, sustained by subsequent successes in later cases, generated

growing momentum that helps to explain the powerful influence of clergy-

sexual-abuse litigation on policy making. This is not to downplay the impact

185. See BRYAN D. JONES & FRANK R. BAUMGARTNER, THE POLITICS OF ATTENTION: HOW

GOVERNMENT PRIORITIZES PROBLEMS 139 (2005) (discussing self-reinforcing “stochastic

mechanisms” that help explain “the observed complexity in any given case of policy change”).

186. Id. at 140–41.

187. Id. at 140.

188. See, e.g., Ex parte Zoghby, 958 So.2d 314, 326 (Ala. 2006) (finding that the trial court did

not exceed the scope of its discretion in ordering discovery of documents that the defendant priest

claimed were protected by the clergyman privilege); People v. Campobello, 810 N.E.2d 307, 317

(Ill. App. Ct. 2004) (“We reject the Diocese’s attempt to conjure a right to secrecy, and with it

immunity from the State’s subpoena power, simply by pointing to the veil it has cast over itself.”).

189. See, e.g., S

IMON, supra note 94, at 141 (attributing the ultimate willingness of law

enforcement to investigate and prosecute Gauthe to the public’s awareness and the media’s

coverage of the civil suits).

2008] Using Tort Litigation to Enhance Regulatory Policy 1865

of procedural aspects of litigation, but only to suggest that their impact on

policy making is not entirely independent of successful outcomes—at least in

enough cases to generate positive feedback.

Third, the silence and inaction surrounding clergy sexual abuse prior to

the Gauthe litigation in 1984 made litigation’s impact on policy making more

dramatic. There are many theories as to why Church officials failed to

address the problem prior to 1984. These include fear of liability, concern

that acknowledging the problem would give rise to scandal and undermine

respect for the Church, a longstanding aversion to government involvement

in Church affairs, and belief that secrecy was in the best interests of victims

and their families.

190

In addition, law enforcement officials and legislators

failed to take action out of allegiance to the Church or fear of its political

influence.

191

When the pressure of litigation and public outrage overcame

the resistance of Church and government officials to address the problem, the

policy changes were dramatic. One sees ambitious policy reforms following

the Gauthe, Porter, and Geoghan cases. Political scientists Frank

Baumgartner and Bryan Jones explain this type of pattern using the concept

of friction. Resistance to change, they explain, whether political, instit-

utional, or cognitive, is a kind of friction that, when overcome, produces a

“jump” in policy.

192

Thus, the policy vacuum prior to 1984 and the friction-

like resistance to change made the policy-making activity prompted by

clergy-sexual-abuse litigation appear especially dramatic.

193

Fourth, clergy-sexual-abuse litigation enhanced the performance of

other policy-making institutions—specifically the USCCB, the criminal

justice system, and state legislatures—by initially prompting them to take

action and then complementing their efforts. Litigation framed the problem

as one of institutional failure, put it on policy agendas, and prompted other

institutions to investigate it. Litigation enabled these other institutions to

address the problem of clergy sexual abuse more effectively, and without it,

it is highly unlikely that any of them would have had the will or the

knowledge necessary to do so.

To summarize, clergy-sexual-abuse litigation owes its remarkable

success in enhancing policy making to four factors. First, the litigation

employed a narrative with a high degree of cultural resonance. Second, the

190. See LYTTON, supra note 12, at 140–43 (analyzing the Church’s failure to address the

problem of clergy sexual abuse prior to 1984).

191. Id. at 144–45.

192. J

ONES & BAUMGARTNER, supra note 185, at 145.

193. We should be careful not to overstate the case. It would be inaccurate to say that there was

no policy-making activity among the bishops in the years between the Gauthe and Porter cases

(1985–1991) and the Porter and Geoghan cases (1994–2001). National Council of Catholic Bishops

(NCCB) staff and subcommittees were busy gathering information and assisting individual dioceses

in developing new policies during both of these periods. Nevertheless, friction remained and gave

rise to jumps in policy. For a more nuanced account, see generally L

YTTON, supra note 12, at 13–

41.

1866 Texas Law Review [Vol. 86:1837

litigation was fueled by a cascade of positive feedback that generated

momentum for policy change. Third, the friction created by resistance to

policy change among Church and government officials required significant

reform pressure, which made eventual changes in policy especially dramatic.

And fourth, the litigation complemented, rather than competed with, other

policy-making institutions by enhancing their understanding of the problem

and their motivation to address it.

This is not to say that gun-industry litigation lacked these four features.

To the contrary, its limited success can be attributed to precisely these

factors. The narrative of random gun violence on urban streets and in

suburban schools and of callous corporate officials more concerned with

profits than with public safety resonated powerfully with widespread and

persistent public concerns about crime and consumer protection. The wave

of individual and municipal lawsuits against the gun industry looks like a

smaller version of the positive-feedback cascade that fueled clergy-sexual-

abuse litigation. There is also considerable friction in gun-control politics

due to the gun lobby’s resistance to policy change. And, as we have seen,

gun litigation complemented legislative and agency regulation in a number of

ways.

But these factors were considerably less pronounced in gun litigation

than in clergy-sexual-abuse litigation, and this helps to explain why the latter

was so much more successful. As compelling as the gun violence narrative

is, it is not as shocking as the story of clergy sexual abuse.

194

The limited

success among gun-litigation plaintiffs failed to spark much positive

feedback, and the litigation therefore generated little momentum for reform.

Gun litigation, rather than overcoming friction, provoked a legislative

backlash that increased resistance to policy change. What the litigation did

achieve did not seem so dramatic in the context of a decades-old battle over

194. See Allen Rostron, Shooting Stories: The Creation of Narrative and Melodrama in Real

and Fictional Litigation Against the Gun Industry, 73 UMKC

L. REV. 1047, 1069–70 (2005)

(discussing the difficulty of translating municipal gun claims into compelling narratives). It has

been suggested that the success of clergy-sexual-abuse litigation is partly attributable to the lack of

a counter-narrative. That is, whereas in gun litigation the plaintiffs’ gun-violence narrative was

countered by the gun industry’s gun-rights narrative, in clergy-sexual-abuse litigation no one

countered the plaintiffs’ institutional-failure narrative with a defense of child sexual abuse. But this

misconstrues the analogy. In the gun-litigation context, the counter-narrative was not a defense of

the problem of which the plaintiffs complained—gun violence—but rather concern over the danger

that litigation would undermine widespread private gun ownership, which gun-rights advocates

portray as essential to liberty. Similarly, in the clergy-sexual-abuse-litigation context, the counter-

narrative was not a defense of child sexual abuse but rather concern over the danger that litigation

would interfere with the Church’s ability to deal with what it considered its own internal affairs

without government interference—an ability Church defenders argue is essential to religious liberty.

See, e.g., Mark E. Chopko, Shaping the Church: Overcoming the Twin Challenges of Secularization

and Scandal, 53 C

ATH. U. L. REV. 125, 132–34 (2003) (describing the threat of litigation to the

independence of the Church). This counter-narrative of religious liberty was widely promulgated

by Church officials in the early years of the scandal. See generally id. at 132–47. That concerns

about Church autonomy have been so thoroughly eclipsed by the story of institutional failure is

evidence of just how successful litigation has been in framing the issue of clergy sexual abuse.

2008] Using Tort Litigation to Enhance Regulatory Policy 1867

gun control. And finally, as we have seen, in certain cases gun-litigation

plaintiffs have tried to advance policies explicitly rejected by state

legislatures, putting litigation in competition with other policy-making

institutions. The perception that plaintiffs are misusing the civil justice

system to circumvent the legislative process has made courts, legislators, and

the public less sympathetic to their claims.

V. Implications for Climate-Change Litigation

Individuals and government entities have filed tort actions against

companies that produce greenhouse-gas emissions with the aim of promoting

policies that will reduce climate change.

195

These tort suits are part of a

complex array of litigation efforts brought by private parties and public

entities against industrial polluters and government agencies; under common

law and statutory theories; and in state, federal, foreign, and international

courts.

196

I will confine my analysis to common law tort litigation, since the

theoretical framework developed in this Article is best suited to evaluating

the effectiveness of tort litigation as a policy tool. Of course, the concepts of

framing, agenda setting, information generation, gap-filling, incentives for

self-regulation, and regulatory diversity may be helpful in evaluating other

forms of climate-change litigation, but such a comprehensive analysis is

beyond the scope of this Article.

It may be helpful to begin by describing a few examples of climate-

change tort claims. In Connecticut v. American Electric Power Co.,

197

eight

Eastern states and the City of New York have sued five electric utilities

whose 174 facilities produce “approximately ten percent of all carbon

dioxide emissions from human activities in the United States.”

198

The

lawsuit alleges that the defendants’ emissions constitute a public nuisance.

199

The plaintiffs seek an injunction requiring each defendant “to cap its carbon

dioxide emissions and then reduce them by a specified percentage each year

for at least a decade.”

200

A federal district court dismissed the suit, which is

currently on appeal.

201

In California v. General Motors Corp.,

202

the State of

195. See Hsu, supra note 8 (manuscript at 11–12) (discussing civil lawsuits filed against private

entities responsible for emitting greenhouse gases).

196. Id. at 8–14. See also Hunter, supra note 7 (manuscript at 3) (citing several recent climate-

change lawsuits).

197. 406 F. Supp. 2d 265 (S.D.N.Y. 2005), appeal docketed, No. 05-5104 (2d Cir. June 7,

2006). For a discussion of this case and other global-warming litigation, see generally Tom Lindley

& Steve Higgs, Climate Change on Trial, O

R. INSIDER, Apr. 2007, at 1.

198. Complaint at 1, Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y.

2005) (No. 04 Civ. 5669), available at http://www.oag.state.ny.us/press/2004/jul/jul21a_04_

attach.pdf.

199. Id.

200. Id. at 49.

201. Lindley & Higgs, supra note 197, at 3.

202. No. C06-05755, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007), appeal docketed, No. 07-

16908 (9th Cir. Oct. 24, 2007); see also Lindley & Higgs, supra note 197, at 3.

1868 Texas Law Review [Vol. 86:1837

California has sued six auto manufacturers, alleging that emissions from cars

they manufactured constituted a public nuisance causing coastal and beach

erosion, reductions in snow pack, sea-water intrusion into freshwater areas,

prolonged heat waves, and increased risk and intensity of wildfires.

203

The

claim was dismissed and is currently on appeal.

204

Finally, Comer v. Murphy

Oil, USA

205

is a class action lawsuit by fourteen Hurricane Katrina victims

against an array of over one hundred oil, coal, and chemical companies

alleging that their emissions of greenhouse gases increase the frequency and

ferocity of hurricanes in the Gulf of Mexico.

206

Based on theories of public

nuisance, negligence, trespass, and misrepresentation, the plaintiffs seek

compensation for damages resulting from Hurricane Katrina.

207

This case

too was dismissed and is currently on appeal.

208

Defenders of climate-change litigation have argued that it enhances

policy making in many of the ways suggested above. My aim here is to

canvass some of these claims and recommend areas for further inquiry that

would enhance our understanding of the litigation’s impact on policy

making. It is too early to draw reliable conclusions about the effectiveness of

climate-change tort litigation—first, because not enough is known about the

impact of existing litigation and second, because climate-change litigation is

still a relatively new phenomenon that is likely to develop further. My

comments are intended neither as an endorsement nor a critique of the

litigation but rather as a set of hard questions and an agenda for future

research.

David Hunter has argued that regardless of the outcome of climate-

change lawsuits, merely filing them has significant implications for policy

making in terms of framing, generating information, and agenda setting.

209

According to Hunter, plaintiffs’ claims have framed climate change in terms

of dramatic narratives linking greenhouse-gas emitters to environmental

changes that have imposed specific harms on identifiable victims.

210

These

narratives, suggests Hunter, make “climate change more tangible and more

immediate, which significantly changes the tone of the climate debate.”

211

“A focus on victims,” he continues, “increases the saliency of questions

203. Second Amended Complaint at 2, General Motors, 2007 WL 2726871.

204. General Motors, 2007 WL 2726871, at *1, appeal docketed, No. 07-16908 (9th Cir. Oct.

24, 2007); see also Lindley & Higgs, supra note 197, at 3 (discussing General Motors in the context

of global-warming litigation).

205. No. 1:05-CV-00436 (S.D. Miss. Aug. 30, 2007), appeal docketed, No. 07-60756 (5th Cir.

Sept. 28, 2007).

206. Third Amended Class Action Complaint at 1–8, Comer, No. 1:05-CV-00436, 2006 WL

1474089.

207. Id. at 19–20; see also Lindley & Higgs, supra note 197, at 3–4.

208. Order Granting Defendants’ Motion to Dismiss at 1–2, Comer, appeal docketed, No. 07-

60756 (5th Cir. Sept. 28, 2007).

209. Hunter, supra note 7 (manuscript at 1–2).

210. Id. at 4.

211. Id.

2008] Using Tort Litigation to Enhance Regulatory Policy 1869

about compensation and adaptation to climate change, and the urgency of

mitigating climate change to avoid even worse impacts in the future. This

builds momentum at both the national and international levels for stronger

climate-policy making.”

212

Hunter also suggests that the use of scientific

information as evidence for legal claims “adds legitimacy and prestige” to

the science suggesting climate change, making it more prominent in “public

discourse.”

213

Moreover, litigation may influence “the development of

climate science” by providing “an incentive to some scientists to prioritize

certain questions that they might otherwise ignore.”

214

Hunter asserts as well

that “[c]limate change litigation empowers civil society to shape the agenda

in ways not allowed in formal negotiations.”

215

Litigation also “shines the

spotlight” on climate change and “force[s] . . . governments to address the

impacts of climate change . . . .”

216

“Even when domestic actions fail,” he

concludes, “they may indirectly build pressure for legislative and policy

action . . . win or lose, climate litigation strategies have harkened a new era

of climate politics.”

217

Alice Kaswan has suggested that climate-change litigation can enhance

policy making by filling regulatory gaps and encouraging industry to support

regulation:

In the absence of comprehensive federal and state climate-change

legislation, federal and state common law actions are essential tools

for allowing the victims of climate-change (all of us) to begin to

address its consequences. . . . In an ideal world, a democratic

legislative process to control climate-change would be preferable to

the decisions of individual judges. But when the legislative process

has failed to produce results, the political argument for allowing

common law actions, that the legislative process may be paralyzed or

captured, provides a compelling justification for allowing the courts to

hear the common law actions that have been brought to date. . . . The

existing common law can fill the vacuum.

218

In addition to filling gaps, Kaswan suggests that litigation “might

prompt an otherwise paralyzed legislature or administrative agency into

action.”

219

The threat of lawsuits, she argues, might also encourage

industries to support rather than oppose a legislative response: “Industries

that might otherwise oppose regulation might be more willing to support a

legislative program if the alternative is piecemeal and unpredictable common

212. Id.

213. Id.

214. Id. at 6, 7.

215. Id. at 15.

216. Id. at 13.

217. Id. at 17, 19.

218. Kaswan, supra note 7, at 104–05.

219. Id. at 100.

1870 Texas Law Review [Vol. 86:1837

law actions.”

220

Even if Congress were to promulgate comprehensive climate

regulation, Kaswan argues, Congress should not preempt future common law

litigation.

221

While common law actions would be rendered unnecessary

under most circumstances, “it is possible that the political process will

generate weak and relatively ineffective legislation. If so, the common law

would provide the victims of climate-change with an important antidote to a

flawed political process.”

222

William Buzbee has argued that climate-change litigation can enhance

policy making by providing diverse regulatory approaches. He contends

that,

The [greenhouse-gas] challenge involves a multiplicity of sources,

varied risks and harms in different locations, changing science and

engineering, and an array of scale challenges. No one regulator can

effectively regulate at all levels. In addition, the actual federal track

record has been one of backpedaling and half measures, while some

states and local governments have taken a leading role. Their diverse

efforts serve in a role long embraced in federalism jurisprudence, that

of “laboratories” of democracy.

223

Buzbee thus envisions a robust and ongoing role for litigation as a policy tool

in addressing climate-change litigation.

224

While Hunter, Kaswan, and Buzbee each defend a broad array of

climate-change litigation efforts, I will focus on their claims as they apply to

tort actions. That climate-change tort litigation might enhance policy making

in the ways they suggest seems entirely plausible in light of the results of

gun-industry and clergy-sexual-abuse litigation. The relatively weak

performance of gun-industry litigation in comparison to clergy-sexual-abuse

litigation, however, cautions that conditions may not always favor the use of

litigation as a regulatory strategy. Studies of gun-industry and clergy-sexual-

abuse litigation suggest different types of evidence that might be available to

test claims about the effectiveness of climate-change litigation and identify

conditions that are likely to favor its use as a policy tool.

As we have seen, framing issues in terms of narratives with a high

degree of cultural resonance enhances litigation’s capacity to influence

policy making. In the case of clergy-sexual-abuse litigation, lawsuits broke

the silence surrounding clergy sexual abuse and framed it as an issue of

institutional failure by Church officials. Media coverage based on litigation

220. Id.; see also Kirsten Engle, Harmonizing Regulatory and Litigation Approaches to Climate

Change Mitigation: Incorporating Tradable Emissions Offsets into Common Law Remedies, 155 U.

PA. L. REV. 1563, 1570–77 (2007) (arguing that the unpredictability of piecemeal environmental

regulation leads industries to support comprehensive federal regulation that they otherwise might

not).

221. Kaswan, supra note 7, at 108–09.

222. Id. at 108.

223. Buzbee, supra note 7, at 1617–18 (footnotes omitted).

224. Id. at 1618–19.

2008] Using Tort Litigation to Enhance Regulatory Policy 1871

sources made this the dominant frame among the public and policy makers.

By contrast, in gun-industry litigation, lawsuits merely reinforced a

preexisting frame already present in gun-control policy debates and public-

health advocacy, and the frame of industry responsibility for gun violence

has by no means eclipsed the competing frames put forward by gun-rights

advocates invoking the Second Amendment and self-defense. Hunter is

surely correct to suggest that stories linking polluters to tangible harms and

identifiable victims have cultural resonance. What remains to be established,

however, is the extent to which litigation—as opposed to science or

grassroots activism, for example—is responsible for this view of the problem

among the public and policy makers.

Research on clergy-sexual-abuse litigation illustrates six ways to go

about answering this question: (1) conducting interviews with those

concerned about climate change—journalists, opinion leaders, officials, and

members of the general public—to see whether their views about climate

change are based on litigation sources or media coverage of litigation; (2)

doing content analysis of media coverage of climate-change litigation, policy

documents, and transcripts of official hearings and debates to determine

whether and to what extent they rely on litigation sources; (3) measuring the

placement and volume of media coverage to look for correlations with

litigation activity; (4) measuring the levels and locations of grassroots

activism to look for correlations with litigation activity; (5) measuring the

levels and venues of government regulatory activity to look for correlations

with litigation activity; and (6) examining poll data for trends in views of

climate change to look for correlations with litigation activity.

225

Of course,

each of these types of evidence has shortcomings. Interviews provide merely

anecdotal evidence. Media coverage is only a proxy for public opinion.

226

Poll data is often skewed by the phrasing of survey questions. And any

correlation between litigation activity on one hand and media coverage,

grassroots activism, government regulatory activity, or poll data on the other

hand does not by itself prove causation. Nevertheless, when taken together,

these diverse types of evidence can support conclusions about causation, and

225. See generally LYTTON, supra note 12, at 81–136 (discussing analogous techniques in

clergy-sexual-abuse litigation).

226. Media scholars have suggested that media coverage of an issue—as measured by the

placement and the volume of stories—offers a proxy for public awareness of and concern about an

issue. See S

HANTO IYENGAR & DONALD R. KINDER, NEWS THAT MATTERS: TELEVISION AND

AMERICAN OPINION 16 (1987) (“Those problems that receive prominent attention on the national

news become the problems the viewing public regards as the nation’s most important.”); John Bohte

et al., One Voice Among Many: The Supreme Court’s Influence on Attentiveness to Issues in the

United States: 1947–1992, in L

EVERAGING THE LAW: USING THE COURTS TO ACHIEVE SOCIAL

CHANGE 23–24 (David Schultz ed., 1998) (arguing that relations between the media and the public

are reciprocal in that market forces dictate that the media follow stories that attract audiences, while

media coverage helps shape public opinion).

1872 Texas Law Review [Vol. 86:1837

they will advance our understanding of litigation’s influence on views of

climate change among the public and policy makers.

227

Determining the influence of climate-change litigation is complicated

by the fact that it did not emerge, as did clergy-sexual-abuse litigation, in the

context of a vacuum. Because public discussion of clergy sexual abuse was

nonexistent prior to the filing of the Gauthe case in 1984, it is relatively easy

to trace the view of clergy sexual abuse promulgated by the media and

adopted by the public and policy makers to litigation. The primary news

source for information about clergy sexual abuse was and continues to be

litigation documents and plaintiffs’ attorneys. By contrast, the extent to

which gun litigation has influenced media coverage or public and official

views of gun violence is much harder to determine. Far from breaking any

silence surrounding the issue, gun-industry litigation emerged in the context

of decades of public and official outcry over gun violence and regular news

headlines as well as nationwide debate, activism, and government regulatory

activity related to gun control.

228

At best, gun litigation’s influence on public

and official views of gun violence is marginal and difficult to isolate.

229

this respect, climate-change litigation is more akin to gun-industry litigation

than to clergy-sexual-abuse litigation. Scientific concern, media coverage,

grassroots activism, state and local policy initiatives, congressional hearings,

foreign government action, and international regulatory activity are all

sources of information on climate change that predate litigation and are more

widely followed than climate-change lawsuits. Establishing and isolating the

influence of litigation on public and official views of the issue amidst this

wide array of information sources is likely to be a difficult task.

Similar challenges face Hunter’s claims about the agenda-setting effects

of climate-change litigation, which require establishing and isolating the

influence of litigation on the agendas of policy making institutions in the

context of so much concurrent and interrelated activity. Moreover, there is

reason to be cautious about his claim that litigation “builds momentum at

both the national and international levels for stronger climate policy

making.”

230

As we have seen, momentum in clergy-sexual-abuse litigation

was fueled by high-profile litigation victories in the form of judgments and

settlements. Media coverage of these litigation victories triggered positive

227. See Lytton, Clergy Sexual Abuse, supra note 90, at 875–77 (arguing that clergy-sexual-

abuse litigation shaped the opinions of both the public and policy makers as evidenced by public-

opinion polls and media coverage).

228. See Dan M. Kahan, Donald Braman & John Gastil, A Cultural Critique of Gun Litigation,

in S

UING THE GUN INDUSTRY, supra note 4, at 105–06 (arguing that gun-industry litigation is

shaped primarily by the “cultural priors” of society).

229. For an argument that gun litigation had no effect on public and official views, see

generally id. See also Rostron, supra note 56, at 500–02 (“It remains to be seen whether the

litigation will have any lasting effect on attitudes toward the industry and gun violence, especially

now that federal immunity legislation could put an end to tort litigation concerning guns.”).

230. Hunter, supra note 7 (manuscript at 4).

2008] Using Tort Litigation to Enhance Regulatory Policy 1873

feedback, increasing the number of victims willing to sue, the number of

attorneys willing to represent them, judicial openness to their claims, and

ultimately the amount of litigation. This cascade of litigation greatly

enhanced its influence on policy making. By contrast, in gun-industry

litigation, a dearth of plaintiff victories impeded the kind of momentum

generated by clergy-sexual-abuse litigation and severely limited its ultimate

impact on policy making. It is too early to tell whether climate-change

litigation will generate the kind of high-profile plaintiff victories capable of

creating enough momentum to influence policy making. If plaintiffs cannot

eventually obtain enough such victories, then it is unlikely the litigation will

have the kind of policy-making impact that Hunter suggests.

More evidence is also needed to assess the extent to which climate-

change litigation generates or promulgates policy-relevant information.

Interviews with scientists could help to determine whether litigation has

shaped their research agendas. Content analysis of media coverage, policy

documents, and transcripts of official hearings and debates along the lines

suggested above, along with poll data, could offer some indication as to

whether litigation has made climate-change science more prominent in public

discourse.

Kaswan’s assertion that climate-change litigation can fill gaps in

legislative and administrative regulation needs further clarification. She

suggests that so far “the legislative process has failed to produce results,”

“that it may be paralyzed or captured,” and that litigation can serve as an

“antidote to a flawed political process” by filling the resulting “vacuum.”

231

To begin with, the absence of legislation is not, by itself, evidence of

paralysis. Legislation is by design hard to pass.

232

Every bill, in order to

become a law, must overcome a number of institutional hurdles: legislative

procedures such as committee review, scheduling, filibusters, and floor

debate, as well as constitutional requirements of approval by two legislative

bodies and the executive. Popular legislation is regularly blocked, despite

majority support, by a small group of committee members, a powerful

majority leader, a minority faction of senators, or an executive veto.

Founding Father Alexander Hamilton viewed these procedural hurdles as a

virtue, characterizing them as “security against the [enactment] of improper

laws” and suggesting that “[t]he injury which may possibly be done by

defeating a few good laws, will be amply compensated by the advantage of

preventing a number of bad ones.”

233

His compatriot James Madison

supported such procedures as not merely a safeguard but also as promoting

231. Kaswan, supra note 7, at 104–05, 108. See also id. at 70 (quoting another scholar that “the

problem of climate change lends itself to the perversion of the public interest by special-interest

industry groups with a vested economic stake in the United States’ continued reliance upon fossil

fuels”).

232. This paragraph and the next draw from Lytton, supra note 6, at 158–60.

233. T

HE FEDERALIST NO. 73, at 443–44 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

1874 Texas Law Review [Vol. 86:1837

legislative deliberation and refinement of bills.

234

These “vetogates,” as

scholars have called them, block the vast majority of proposed legislation.

235

Of the 2,154 bills proposed in the Senate and the 4,646 bills proposed in the

House during the 109th Congress (2005–2006), only 482 were signed into

law.

236

In New York State during the 2007 legislative session, 16,239 were

proposed but a mere 690 were enacted into law.

237

Thus, killing legislation is

as much a part of the normal legislative process as passing it.

Secondly, successful lobbying efforts opposing legislation are not

necessarily a sign that the legislative process has been “captured.” Interest

groups, even ones that represent minority views, make a valuable

contribution to the legislative process.

238

There is a long-standing

ambivalence in American politics toward the role of interest groups—what

Founding Father James Madison called “factions”—in our democracy.

239

one hand, we denounce “special” interest groups as antidemocratic in their

use of money and influence to defeat popular legislation or to pass laws

granting special favors. On the other hand, we praise “public” interest

groups for representing not only their members but also large silent

majorities or voiceless minorities. Popular distinctions between the two are

largely rhetorical, expressing approval or disapproval of a particular group’s

aims rather than any real difference in the way it operates or the role it plays

in policy making. Whether the American Civil Liberties Union, the NRA,

the Sierra Club, or the U.S. Chamber of Commerce are special or public

interest groups depends upon whom one asks. The fact is that all of these

organizations, judging by membership, represent small minorities within the

overall population. The largest of these groups, the NRA, claims a

membership of 4.3 million,

240

while the Sierra Club claims a membership of

more than 1.3 million.

241

And yet interest groups such as these play a vital

democratic role in a polity as large and as complex as ours, allowing for

citizen participation and providing a forum for the generation and

dissemination of information.

234. See generally THE FEDERALIST NO. 10 (James Madison) (discussing the virtue of multiple

competing interests and the moderating effects of such competition on the outcome of legislation).

235. W

ILLIAM N. ESKRIDGE, PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND

MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 66–67 (3d ed.

2001).

236. See 153 C

ONG. REC. D1674 (daily ed. Dec. 31, 2007) (Final Résumé of Congressional

Activity for the Second Session of the 109th Congress); 152 C

ONG. REC. D158 (daily ed. Mar. 2,

2006) (Final Résumé of Congressional Activity for the First Session of the 109th Congress).

237. See generally New York State Legislative Retrieval Service, www.nyslrs.state.ny.us.

238. This paragraph relies on S

CHUCK, supra note 88, at 204–50.

239. Id. at 204 (citing T

HE FEDERALIST NO. 10, at 77 (James Madison) (Clinton Rossiter ed.,

1961)).

240. National Rifle Association, Institute for Legislative Action: About, http://www.nraila.org/

About (stating that the NRA has “more than 4 million members”); see also Elizabeth Olson,

Amassing the Troops for Political Battle, N.Y.

TIMES, May 4, 2006, at C7.

241. Sierra Club Home Page, http://www.sierraclub.org.

2008] Using Tort Litigation to Enhance Regulatory Policy 1875

Gun-industry litigation offers an example of using lawsuits as a means

of overcoming powerful lobbying forces that blocked more expansive gun-

control legislation. I have argued elsewhere that we should be wary of

suggestions that legislative consideration and rejection of gun-control

measures constitute a failure of the legislative process or that successful gun-

lobby efforts constitute capture of the legislative process.

242

Moreover, the

perception that litigation has been used to circumvent the legislative process

and to promote regulatory measures rejected by legislatures led some judges

to dismiss gun-industry litigation and many legislatures to grant the industry

statutory immunity.

243

By contrast, the vacuum that characterized the context

of clergy-sexual-abuse litigation was not legislative rejection of more

expansive regulation, but no legislative consideration at all. Indeed, it was a

total public silence on the issue at all levels and branches of government.

In arguing that climate-change litigation is filling a regulatory gap left

open by the legislative process, the litigation’s defenders need to clarify

exactly why they believe the legislative process has failed. As I have

suggested, the rejection of more expansive regulation need not suggest

paralysis, and the active participation of interest groups in the legislative

process does not necessarily constitute capture. Kaswan does explain that

one reason for the federal government’s failure to adopt additional climate-

change regulation is opposition by legislators from states that “may be

reluctant to face the short-term economic consequences of climate-change

mitigation” and President Bush’s opposition to “mandatory emissions

reductions.”

244

But legislative and executive opposition hardly amounts to a

form of institutional failure or a “flawed political process.” The legislative

backlash against gun-industry litigation suggests that any perception that

climate-change litigation is designed to circumvent the legislative process

may undermine its effectiveness.

It is still too early to assess Kaswan’s suggestion that litigation might

encourage industry to support a unified federal regulatory scheme. In the

case of both gun-industry and clergy-sexual-abuse litigation, lawsuits

encouraged self-regulation. They did not, however, change gun-industry

executives’ or Church officials’ traditional resistance to more stringent

government regulation.

It will be interesting to see how Buzbee’s assertion that climate-change

litigation allows for local flexibility and experimentation plays out as

litigation and regulation in the area develop. Buzbee focuses on the

242. See Lytton, supra note 6, at 155–60.

243. See, e.g., City of Chicago v. Beretta, 821 N.E.2d 1099, 1106 (Ill. 2004) (“Any change of

this magnitude in the law affecting a highly regulated industry must be the work of the legislature,

brought about by the political process, not the work of the courts . . . . [W]e point to the virtue of

judicial restraint.”); Protection of Lawful Commerce in Arms Act, Pub. L. No. 109-92, § 2(a)(8),

119 Stat. 2095 (2005) (to be codified at 15 U.S.C. § 7901) (specifically listing as a congressional

finding the “attempt to use the judicial branch to circumvent the Legislative branch”).

244. Kaswan, supra note 7, at 69–71.

1876 Texas Law Review [Vol. 86:1837

relationship between federal and local regulatory efforts. It might also be

worth attending to the relationship between litigation efforts on one hand and

legislative and administrative regulation on the other hand. The mixed

results of gun-industry litigation and the success of clergy-sexual-abuse

litigation suggest that tort litigation is most likely to enhance policy making

when it complements the efforts of other policy-making institutions. When

litigation efforts are perceived as being at odds with legislative or

administrative policy making, this may provoke a backlash in the form of

immunity legislation, foreclosing the potential contribution of litigation to

policy experimentation.

In conclusion, it bears repeating that I do not question the legitimacy of

using tort litigation as a means of promoting regulatory policy. In the

absence of preemption, courts have jurisdiction to hear common law claims

and decide them in ways that inevitably require policy choices and have

policy implications beyond the particular dispute in question. At the same

time, however, I believe that the effectiveness of tort litigation as a policy

tool varies. Gun-industry litigation, while not entirely unsuccessful, offers a

cautionary tale. Clergy-sexual-abuse lawsuits, by contrast, highlight the

policy-making benefits of tort litigation. In evaluating the effectiveness of

climate-change litigation, we would do well to apply the lessons learned

from these earlier experiences with regulation through litigation.