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Good Public Policy Book!

Interesting To Say The Least

Provoking Look at Public Policy and the Tobacco Industry

"For those readers sincerely interested in reducing smoking and its attendant health risks, "Up in Smoke" presents a decidedly mixed bag. Although smoking continues to decline among Americans, the states now have a large vested interest in seeing that the sale of cigarettes continues unabated. If such continuation occurs, they can count on substantial payments from the industry for at least the next two decades. Also, many states are now increasing dramatically their excise taxes on cigarettes. The revenue stream from this unhealthy habit has become important to state finances. Obviously, the states will be reluctant to ban smoking entirely."

"Thus, those aspiring to a smoke-free society are now considerably more limited in their alternatives for achieving their goal. Local governments may continue to enact highly restrictive legislation, and there is the slim possibility that national government litigation may result in heavier penalties on smoking. Lawsuits by private plaintiffs also remain a viable, though limited, option. The most serious problem posed by the MSA (master settlement agreement of 1997) for antismoking activists, however, is that it has created a powerful political constituency that reaps substantial rewards from the tobacco industry. There is little reason to believe that state legislatures will stand idly by and allow either their courts or their local governments to threaten their revenue."
-From "The Independent Review," Winter 2003

Fascinating Image of American Politics

Don't buy this book

I awarded two stars for Dr. Derthick's central idea. I could not award any more stars due to Dr. Derthick's flawed execution in writing this book.

Her central idea is that litigation does not work as well as legislation in designing policies and making decisions. Most readers, I believe, will grant the author that much. Lawsuits are designed for some evils of democracies but are not well designed to make policy or to regulate society.

A good book on the pitfalls of litigating even when legislatures, executives, and bureaucracies have largely failed would be a Godsend, I thought. I still think that. The trouble is, this is not a good book.

Some of the book is merely disappointing: arguments and assumptions too flimsy to be specious; half-clever tactics that will fool few who do not want to be fooled; and so on. However, what about wretched students whose teacher is so reckless as to assign the book? How many of them will see the fallacies? This, then, is a dangerous book when it is not merely disappointing.

Let me reveal just two tricks.

Trick #1: Ersatz Equilibration

Professor Derthick facilely "levels the playing field" by supplying -- usually at the end of a long paragraph of anti-smokers' complaints about Big Tobacco's stifling of reforms -- some allegedly compensating political advantage that the anti-smokers enjoyed. I could supply examples, but I shall spare ... busy patrons. This trick should not deceive a deft reader any more than noting that Burt Lancaster's soldiers downed a Japanese plane in "From Here to Eternity" made the U. S. less disadvantaged after Pearl Harbor. [If the author would protest that comparison, I would remind her that tobacco kills more Americans in a month than died at Pearl Harbor on 12-7-41.]

Still, I worry that beginning students or gullible citizens may not see that Derthick has downplayed all of the bogus research, mendacity, and propaganda that Big Tobacco has used to prevent legislative initiatives from succeeding.

If readers know that normal politics has been subverted by tobacco companies, they may welcome the courts as a way to save fellow citizens from cancer or at least to make tobacco companies devote some of their profits to helping those whom they have victimized.

Trick #2: Ideals and Reals

The good professor presumes that no one would deny that the Constitution favors legislation over litigation. I deny that. Indeed, I do not see how one could construe the separation of powers a la Montesquieu and the Constitution of 1787 -- and state constitutions -- other than to say, as Marshall claimed in Marbury v. Madison, that courts interpret and apply legislated policies to specific cases. The Constitution, I had long believed, assigned different sorts of policy-making to different spheres. Dr. Derthick's truism is false unless one circumscribes policy-making in a manner utterly at odds with political experience.

However, even if the Constitution conferred some priority on legislative policy-making, and even if we overlook the domination of at least some policy-making by executives and extra-legislative forces, anti-smokers would nonetheless have an argument that Congress had defaulted over the decades.

The author not only soft-peddles the legislative history of smoking but hypes the crusade-like mentality of the anti-tobacco forces. This lovely decontextualization makes anti-tobacco activists look truly fanatical unless the reader is independently aware of the perfidy and propaganda and profits that have characterized at least fifty years of Big Tobacco's purported or proven role as purveyor of cancer. [Of course, the author does note that smokers chose to smoke. Great point! And women who used Dalkon Shield chose to have it inserted! And alcoholics chose to take that first drink!]

If we compare Congress as an anticipated ideal with the real world politicking in Congress, we should not be surprised when the ideal bests the real. To steal from John Hart Ely: the good news is that the good doctor's trick "works;" the bad news is that everyone should see it as a cheap trick.

I believe that there are serious words to be written and said about the use of litigation to make policy but the author evidently decided not to write about or even to learn about the uses of litigation. I hope someone will write that serious work.

Book Description

In her second edition, Martha Derthick introduces new evidence from 5 years of experience under the MSA to show that the states were more interested in raising revenue than in improving tobacco control, that the enrichment of wealthy tort lawyers violated the legal profession's ethics, and that the agreement, ironically, spawned the rise of small, upstart cigarette manufacturers able to undersell the major companies. In this clearly written, fast-paced case study, Derthick concludes that the tobacco lawsuits not only produced flawed public policy that flouted the American system of checks and balances, but has done little to improve or better safeguard public health.