May 9, 2008

By Judge And Jury: Case Studies In Regulation By Litigation

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Regulatory agencies have long exercised the authority to implement forward-looking requirements on industries through a notice and comment process. In recent years, however, there has been a shift in the way regulations are handled as agencies, state attorney generals, and private law firms have turned to the courts to introduce new requirements through lawsuits against entire industries. Examples of such regulation by litigation range from asbestos and silica suits to those involving engine emissions, electric utilities and tobacco. Although supporters of the settlements say that the process calls attention to sensitive policy questions in need of a solution, the manner and wide scope of these actions have caused some controversy as critics wonder if the judiciary has assumed a more legislative role.

In a special Capitol Hill Campus program, Dr. Bruce Yandle of Clemson University presents two case studies involving regulation by litigation: one on diesel engines and the other on tobacco products. Through these specific examples he will delve into the implications of such a shift in the court system.