Regulation through litigation refers to changes in society (particularly those that affect industries) brought about by litigation, rather than

legislation Legislation is the process or result of enrolling, enacting, or promulgating laws by a legislature, parliament, or analogous governing body. Before an item of legislation becomes law it may be known as a bill, and may be broadly referred to ...

or self-regulation. Some laws have " private attorney general" provisions that permit individuals to file suit in court to vindicate important rights. Many laws for addressing consumer protection,

civil rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life o ...

and employment discrimination provide incentives for the private enforcement of laws by allowing the prevailing party to recover a reasonable

attorney's fee Attorney's fee is a chiefly United States term for compensation for legal services performed by an Lawyer, attorney (lawyer or law firm) for a client, in or out of court. It may be an hourly, flat-rate or contingent fee. Recent studies suggest that ...

. Regulation through litigation may at times overlap with

judicial activism Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...

Criticism

Critics include members of industry and public-service professions; some argue that as potential

defendants In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdi ...

, their opposition is based more in self-interest than in policy concerns. Of particular concern is the use of the attorney general office to make policy, especially when that policy contradicts the policy of the chief executive. For example, many criticized

Mississippi Attorney General The Attorney General of Mississippi is the chief legal officer of the state and serves as the state's lawyer. Only the Attorney General can bring or defend a lawsuit on behalf of the state. The Attorney General is elected statewide for a four-yea ...

Jim Hood for his litigation against insurance companies after Hurricane Katrina on the grounds that it undid the efforts of

Governor A governor is an administrative leader and head of a polity or political region, ranking under the head of state and in some cases, such as governors-general, as the head of state's official representative. Depending on the type of political ...

Haley Barbour Haley Reeves Barbour (born October 22, 1947) is an American attorney, politician, and lobbyist who served as the 63rd governor of Mississippi from 2004 to 2012. A member of the Republican Party, he previously served as chairman of the Republican ...

to improve the business environment in the stat

In another example, eight state attorneys general unsuccessfully sued utility companies in an attempt to force implementation of

global warming In common usage, climate change describes global warming—the ongoing increase in global average temperature—and its effects on Earth's climate system. Climate change in a broader sense also includes previous long-term changes to E ...

standards that the federal government had refused to adop

Some critics cite the

constitutional A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these prin ...

doctrine of

separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...

, arguing that rules that govern society as a whole should be rooted solely in laws enacted by legislative bodies. By corollary, the

judicial The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...

and executive branches should properly be limited in their powers with regard to the law: the judicial in interpreting the laws, and the executive in enforcing the laws. There are sometimes legislative efforts to prevent regulation through litigation.

Rick Boucher Frederick Carlyle Boucher (; born August 1, 1946) is an American politician who was the U.S. representative for from 1983 to 2011. He is a member of the Democratic Party. He was defeated in his bid for a 15th term by Republican Morgan Griff ...

(D-VA) argued in support of a 2005 federal

tort reform Tort reform refers to changes in the civil justice system in common law countries that aim to reduce the ability of plaintiffs to bring tort litigation (particularly actions for negligence) or to reduce damages they can receive. Such changes a ...

that gave immunity to gun manufacturers in lawsuits that were "nothing more than thinly veiled attempts to circumvent the legislative process and achieve gun control through litigation"; reform supporters complained (with

the Pentagon The Pentagon is the headquarters building of the United States Department of Defense. It was constructed on an accelerated schedule during World War II. As a symbol of the U.S. military, the phrase ''The Pentagon'' is often used as a meton ...

's support) that the plaintiffs were trying to "sue un manufacturersout of existence" through forcing them to incur $250 million in legal defense expenses, while gun control supporters argued that the legislation took away "the right of victims to be able to have their day in court", that the bill gave unprecedented immunity to a single industry, and that the law was unconstitutiona

External links

Walter Olson Walter K. Olson (born 1954) is an author and blogger who writes mostly about legal subjects, including tort reform. Olson is a senior fellow of the Cato Institute, a libertarian think tank in Washington, D.C. Formerly, Olson was associated with t ...

, ''Point of Law''
"Regulation through Litigation"
*

Robert Reich Robert Bernard Reich (; born June 24, 1946) is an American professor, author, lawyer, and political commentator. He worked in the administrations of Presidents Gerald Ford and Jimmy Carter, and served as Secretary of Labor from 1993 to 1997 in ...

, ''

USA Today ''USA Today'' (stylized in all uppercase) is an American daily middle-market newspaper and news broadcasting company. Founded by Al Neuharth on September 15, 1982, the newspaper operates from Gannett's corporate headquarters in Tysons, Virgi ...

'', 11 February 1999
"Regulation is out, litigation is in"
*

American Tort Reform Association The American Tort Reform Association (ATRA) is a nonprofit, nonpartisan organization dedicated to reforming the civil justice system and advocating for tort reform. It was founded in 1986 by the American Council of Engineering Companies and was jo ...

br>response to Reich
*

John Fund John H. Fund (born April 8, 1957) is an American political journalist. He is currently the national-affairs reporter for National Review Online and a senior editor at ''The American Spectator''. Life and career Fund was born in Tucson, Arizona. ...

and Martin Morse Wooster
''The Dangers of Regulation through Litigation: The Alliance of Plaintiff's Lawyers and State Governments''
Sociology of law Economics of regulation

Criticism

See also

Further reading

External links