Regulating Firearms through Litigation Symposium Article

As a result of relatively weak regulation, firearm use leads to massive negative externalities. Efforts to minimize these social costs via legislation have been unsuccessful, which have led individuals and government entities to seek regulation through another avenue: litigation. This use of the courts as a regulatory gap-filler raises vital questions, among which perhaps the most vital is whether courts are effective at performing this role. This Article seeks to answer that question by comparing the courts as an institution with other institutions, such as markets, legislatures, and administrative agencies. I consider a number of factors that can be used to measure institutional effectiveness, and argue that courts are the optimal (albeit imperfect) institution for dealing with firearm-related externalities. I then consider a number of remedies that could be used to address the firearm-related externalities, concluding that damage awards are appropriate to remedy these social costs, while at the same time creating market-based incentives to reduce future externalities