This post in The Commons raises an issue that has concerned me for years. Increasingly, activists are using the courts to achieve regulatory goals that legislatures and/or voters have rejected. While I am still not sure there is constitutional justification for the degree of legislated regulation that exists in this country, there certainly is no basis for individual courts running whole industries (e.g. telecom, tobacco).
State attorneys general and private plaintiffs lawyers are increasingly turning to the nation's courts to adopt regulatory measures that legislatures reject. Such "regulation by litigation" has been used against numerous unpopular industries in suits by government and private attorneys. The first set of cases sought to regulate and extract rents from the tobacco companies, but subsequent cases have been brought by both private lawyers and government agencies against gun makers, lead-paint producers, coal-burning utilities, diesel engine manufacturers, and many other industries. In each case, the aim is to extract rents and impose regulatory controls that could not be adopted through the legislative or administrative process.
Read the whole thing.