The Complementary Role of Tort Litigation in Regulating the Gun Industry

Tort claims against gun manufacturers call on judges to make policy choices about firearm design and marketing. There is much debate over whether judges should be in the business of making policy choices. On one hand, traditionalists denounce judicial policy making as violating the constitutional separation of powers which reserves policy making to legislatures and consigns courts to resolving individual disputes between parties. Moreover, according to this view, courts lack the breadth of perspective necessary to make good public policy, a breadth that legislatures achieve through initiating investigations or holding hearings. In addition, courts of general jurisdiction lack the technical and scientific expertise that administrative agencies lend to legislative policy making. On the other hand, progressives embrace judicial policy making as part of a public law vision of the tort system. According to this view, courts should craft creative solutions to social problems when deadlocked or corrupt legislatures fail to act. Furthermore, by using procedural techniques that allow for the consolidation of many claims into one legal proceeding, courts can resolve individual claims en masse, thereby avoiding the possible inconsistencies and inefficiencies of piecemeal adjudication on a case-by-case basis. In this chapter, I advocate an intermediate position. I argue that courts should play a secondary role in policy making that complements the regulatory efforts of legislatures and administrative agencies. Against the traditionalist position, I assert that judges are wise in attending to the public policy implications of their rulings in individual cases. The nature of common law adjudication is to apply old legal principles to new problems. The proper application of these principles, however, is often unclear, and judges are required to resolve ambiguities on the basis of something other than clear precedent. It is here that policy analysis plays a legitimate role in judging. Against the progressive position, I argue that courts should confine their policy analysis to the resolution of doctrinal ambiguities. Courts should use policy analysis to gradually refine tort law\u27s system of rules for resolving private disputes in ways that serve the public interest. Radical shifts in doctrine, even when supported by sound policy choices, undermine the legal stability that in our constitutional scheme courts are uniquely qualified to protect. Furthermore, I argue that in making policy choices, courts should, where possible, follow the lead of legislatures. To the extent that there are discernable trends in legislative consideration of a problem, it undermines the legitimacy of judicial decision making for judges to contradict them. The danger of unrestrained judicial policy making is greatest in mass torts, where the aggregation of claims and industry-wide liability exposure can easily transform the resolution of private disputes into the crafting of innovative solutions to social problems, without due regard for doctrinal integrity or legislative preferences