Skip to main content

Legislating through Litigation

Oklahoma’s Attorney General and trial courts appear to now be in the business of taxing industries and appropriating funds to state agencies. These are powers that the Oklahoma Constitution explicitly grants to the legislature. They are certainly not given to the Attorney General or the courts. But in the name of mitigating a “public nuisance,” these legislative powers have effectively been misappropriated. 

 The $572 million judgment recently handed down in Oklahoma’s opioid litigation looks an awful lot like a piece of legislation. It purports to tackle a broad societal problem by taxing a company alleged to have contributed to it and using the money to fund government agencies and programs aimed at ameliorating the problem. The Court and Attorney General justified this approach by claiming an “abatement plan” was needed to counter the so-called public nuisance of prescription drug abuse. Besides stretching the public nuisance theory far beyond its historical application, the ruling closely resembles the type of public policy that is normally (and properly) implemented through legislation.

 For example, the Court's Order:
  • Creates and funds programs (well in excess of $100 million) at state agencies dealing with everything from prenatal screening and treatment for opioids to public medication disposal programs;
  • Funds licensing boards to hire additional personnel, including the state's veterinary, dentistry, nursing, and medical licensure boards;
  • Funds law enforcement agencies;
  • Funds programs at the OU Health Sciences Center; and
  • Contains a specific line item (more than $11 million) to fund the Attorney General’s office for, among other things, the AG’s “Policy and Legislative Development Tracking division.”
We elect legislators to perform this type of function, not judges. And for good reason. Legislators run campaigns proposing solutions to societal problems. Once in office, they can do expansive fact finding and hear from all segments of society. We can petition them to influence their policymaking. Most critically, when legislators make policy we think unwise we can vote them out of office and change course. This is the democratic process, and it has worked out pretty well for the United States over the last two centuries.

Judges perform a different function in our system. They are supposed to apply the rule of law to decide discrete disputes between parties with a particular stake in the outcome of the case. Public opinion and solving society’s problems are simply not in the job description. Again, this is for good reason. Judges do not have the tools legislators have to consider what is best for the broader society, and do not have the legitimacy that comes with standing for regular elections (yes, trial court judges are elected in Oklahoma, but they are prohibited from campaigning on particular issues and the races are nonpartisan, meaning they are mostly popularity contests).

 The opioid litigation featured the wrong branch of government (an executive agency instead of the legislature) using the wrong vehicle (a lawsuit instead of legislation) to lobby another wrong branch of government (the judiciary) to impose a tax, appropriation, and regulatory scheme. 

 Missing from all of this? The rule of law and those who are ultimately in charge of state policy, the People. What has happened to the separation of powers?

 There is no doubt that the illegal use and abuse of prescription drugs is a serious problem. Many people believe the state government has a role in trying to get control of the situation. Apparently those people have been voting, because the elected branches of state government have been passing legislation and setting up programs to try to combat the problem (and with some success; opioid-involved deaths have actually been on the decline in Oklahoma in recent years).

 So does it really matter how we get to a solution as long as we get one? What does it matter whether it was the AG suing a company and a judge making public policy from the bench rather than the elected legislature doing the legislating?

 For an answer to that question, ask yourself: if the abatement plan doesn’t work, how are you going to convince a district court judge in Norman to change the state’s policy? If a state agency misspends the money, who will you hold responsible at the ballot box? If you just plain disagree with this approach to the opioid abuse problem, who’s townhall meeting are you going to show up to?

Don’t look at the legislature, because they had nothing to do with this.

 Perhaps they should get involved.

Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.

Popular posts from this blog

What if Legislators Were Licensed? Well, Just to Make a Point...

1889 Institute, as a general matter, objects to occupational licensing. We have written about it more than any other subject. The scant benefits simply do not outweigh the enormous costs to consumers and entrepreneurs, and  the  burdens that disproportionately impact the poor.   It must be noted that the remainder of this post is a work of satire. This should be obvious to anyone who has read even one of our papers, but each of the proposals below has an analogous provision in Oklahoma licensing laws. To those supportive of government-created cartels, these proposals might sound almost reasonable.  A material threat to the public safety and welfare has for too long gone entirely unregulated, unrestrained and unchecked. This menace has the power to corrode not only mere industries, but to corrupt the entire state economy. It’s no overstatement to say that the practitioners of this perilous profession hold the power to destroy democracy as we know it. After a...
Read more

About Those Roads in Texas

A s Sooner fans head south for the OU-Texas game next week, they will encounter a phenomenon most of us are familiar with: as you cruise across the Red River suddenly the road gets noticeably smoother. The painted lane stripes get a little brighter and the roadside “Welcome to Texas” visitors’ center gleams in the sunlight, a modern and well-maintained reminder of how much more money the Lonestar State spends on public infrastructure than little old Oklahoma. Or does it? Why are the roads so much, well… better in Texas? Turns out, it isn’t the amount of money spent, at least not when compared to the overall size of the state’s economy and personal income of its inhabitants. Research conducted by 1889 Institute’s Byron Schlomach reveals that Oklahoma actually spends significantly more on roads than Texas as a percentage of both state GDP and personal income . And that was data from 2016, before Oklahoma’s tax and spending increases of recent years. The gap is likely gr...
Read more

How Biden/Harris and Well-educated Sophisticates Are Wrong in the Age of COVID-19

Vice President-elect Kamala Harris often declared during the campaign that “We believe in science.” And judging by the tendency of the college-educated , especially among the sophisticates living on the coasts, to agree with Harris’s positions on everything from climate change to proper precautions amid COVID-19, belief in “science” seems to many a mark of knowledge and wisdom. But is it? The modern belief in “science” increasingly appears to be a religion wherein the words of certain recognized experts are received with the reverence once reserved for the Pope. A college diploma almost serves as a permission slip to suspend one’s own judgment and reason in favor of taking the word of certain experts to heart, especially if they work in government, certain universities, or gain media credence.   This tendency to turn experts and the media into high priests of all knowledge is nothing new. In 1986, 60 Minutes ran a story about a phenomenon people experienced in cars with automatic...
Read more

Liability In the Time of Covid: When Should Businesses Be Sued for the Spread of Infectious Disease?

When businesses reopen, what liability should they face related to the spread of Covid? Can businesses who remained open during the pandemic, or those who were open before the lockdowns began, be held liable if their customers caught the virus within the businesses’ walls? If so, what would a customer-plaintiff need to prove?   Defending even a meritless lawsuit can be prohibitively expensive. For this reason, it is important to define ahead of time what harms can lead to successful lawsuits. Limitations on causes of action can reduce unwarranted suits by kicking them out of the legal system earlier in the process. So what should businesses be liable for? There are two distinct categories of business liability that might arise from Covid. The first is products liability. The second is liability for infection spread within a business.   Products Liability First, any willful fraud perpetrated in relation to Covid should be severely punished. This would include ...
Read more