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The Lynching of "Big Tobacco" By: Alex Epstein
FrontPageMagazine.com | Wednesday, July 05, 2006


America is a nation that reveres the fact that ours is "a government of laws, not of men." Under this principle, members of government can use their power only to enforce known and clearly defined laws. As a result, we do not worry about losing our property or being thrown in jail just because we are unpopular or because some government official dislikes us.

The rule of law is a precondition of a free society, but by itself does not guarantee that freedom will be protected; it is possible for citizens and lawmakers to pass laws that violate individual rights. Thus, it is crucial that citizens have political and legal recourse to argue for a law to be changed, repealed or overturned. What a proper legal system must not allow, however, is for anyone to take the law into his own hands; when such vigilantism is allowed in place of the rule of law, no one's rights are safe.

Any American who understands the importance of this principle should be concerned with the case of Engle vs. Liggett Group, on which the Florida Supreme Court is set to render final judgment. The 2001 Engle verdict ordered tobacco companies to pay $165 billion in immediate, punitive damages in the name of their alleged crimes against 700,000 Florida smokers.

The unprecedented punishment was arrived at via a trial that, as documented thoroughly by a 2003 appellate ruling overturning the verdict, flouted the law to a staggering degree.

For example: the trial court upheld class certification to some 700,000 Florida smokers with vastly different individual circumstances -- even though class certification only applies to cases with fundamentally similar liability claims. "[I]t is inescapable," the appellate court found, "that the...requirements for class action have not been met." The trial court assessed punitive damages even though such damages were "precluded by the [1998 government] settlement agreements which...expressly included claims for punitive damages." Further, the trial court assessed a bankrupting amount of punitive damages, even though all legal precedent holds that punitive damages (even when they apply) "may not be assessed in an amount which will financially destroy or bankrupt a defendant."

The plaintiff's attorney, Stanley Rosenblatt, knowing that the law did not allow for the punishment he sought, made emotionally charged appeals to the jury to ignore the law. "[C]ounsel repeatedly urged the jury to fight what he called 'unjust laws.'" Rosenblatt -- who in a 1992 book presented his self-described "'Piss on the Law' theme" -- likened tobacco companies to perpetrators of slavery and the Holocaust, and then told jurors to consult not the law but their "moral, ethical, [and] religious" beliefs to determine whether the companies deserved a bankrupting judgment.

Such conduct should not be allowed in the courtroom. But trial judge Kaye responded only with an occasional "patently ineffective" warning. Even worse, he, too, instructed the jury to ignore the law, saying of a Supreme Court ruling favorable to tobacco companies: "Now, we've got to work around it [the federal law]...Because it is flat-out so wrong in my opinion...with all due respect for the Supreme Court."

The purpose of a trial is to objectively determine the truth about some alleged wrongdoing, by following carefully defined procedures of evidence and then applying the law accordingly. In the Engle case, plaintiff's attorney and the judge chose to ignore the relevant liability laws and procedures because they disliked them. They adopted the lynch mob mentality that righteously hangs a man because it feels he must be evil.

This mentality is broader than just the Engle case. It was present in the anti-financier persecutions of the 1980s, in which financiers were prosecuted under anti-racketeering laws designed to stop organized crime -- and in which superstar financier Michael Milken was, in the words of University of Chicago law professor Daniel Fischel, "driven out of business and forced to plead guilty to crimes that previously did not exist." In today's courts, plaintiffs' attorneys incite juries to award jackpot verdicts by demonizing unpopular targets like tobacco companies, pharmaceutical companies, or CEOs -- and juries justify their verdicts as "sending a message" the law does not authorize them to send.

The anarchy of the Engle case must be rejected by the Florida Supreme Court -- and we should repudiate such lawlessness wherever it occurs. Like all encroachments on individual rights, this one is beginning by targeting unpopular individuals and groups. If we allow it to stand, many innocent, law-abiding Americans are thereby deprived of their rights. And if we allow it to stand, nobody's rights are safe.

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Alex Epstein is a writer for the Ayn Rand Institute (ARI) in Irvine, California, which promotes the philosophy of Ayn Rand. Send comments to reaction@aynrand.org.


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