Using tort litigation to enhance regulatory policy making: Evaluating climate-change litigation in light of lessons from gun-industry and clergy-sexual-abuse lawsuits

Texas Law Review

Volumn 86, Issue 7, 2008, Pages 1837-1876

  Lytton, Timothy D ^a  

^a YALE UNIVERSITY   (United States)

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EID: 50049117706     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (246)

1. These lawsuits are based not only on traditional common law tort claims such as misrepresentation, negligence, and product defect, but also on statutory claims such as public nuisance and unfair trade practices. The latter might be better characterized as public enforcement actions. Nevertheless, for the sake of simplicity, I refer to all of these different examples as "tort litigation."
2. See, e.g., Peter D. Jacobson & Kenneth E. Warner, Litigation and Public Health Policy Making: The Case of Tobacco Control, 24 J. HEALTH POL. POL'Y & L. 769, 769 (1999) (finding "a distinct role for litigation as a complement to a broader, comprehensive approach to ... policy making");
3. Lynn Mather, Theorizing About Trial Courts: Lawyers, Policymaking, and Tobacco Litigation, 23 LAW & SOC. INQUIRY 897, 897-99 (1998) (exploring how tobacco litigation changed government tobacco policy);
4. Robert L. Rabin, Reassessing Regulatory Compliance, 88 GEO. L.J. 2049, 2053 (2000) (considering the interplay between regulation and tort law);
5. Wendy E. Wagner, When All Else Fails: Regulating Risky Products Through Tort Litigation, 95 GEO. L.J. 693, 694-95 (2007) (arguing that critics of regulation through litigation "ignore debilitating limitations on information that reduce the competence and accountability of agency regulators").
6. See ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW 4 (2001) (criticizing U.S. governance and legal processes as "markedly inefficient, complex, costly, punitive, and unpredictable" and, in consequence, often unjust).
7. Peter H. Schuck, Why Regulating Guns Through Litigation Won't Work, in SUING THE GUN INDUSTRY: A BATTLE AT THE CROSSROADS OF GUN CONTROL AND MASS TORTS 225, 234-35 (Timothy D. Lytton ed., 2005).
8. See W. Kip Viscusi, Overview of REGULATION THROUGH LITIGATION 1, 1, 20 (W. Kip Viscusi ed., 2002) (discussing the drawbacks to regulation through litigation).
9. See, e.g., Timothy D. Lytton, The NRA, the Brady Campaign, & the Politics of Gun Litigation, in SUING THE GUN INDUSTRY, supra note 4, at 152, 166 (explaining that, in response to lawsuits, the gun industry persuaded thirty-two states to provide the industry with statutory immunity against most litigation).
10. See, e.g., William W. Buzbee, Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction, 82 N.Y.U. L. REV. 1547, 1617 (2007) (stating that, with regard to greenhouse gases, "eliminating ... common law incentives creates a high risk of dysfunctional regulation"); David Hunter, The Implications of Climate Change Litigation for International Environmental Law-Making, in ADJUDICATING CLIMATE CONTROL: SUB- NATIONAL, NATIONAL, AND SUPRA-NATIONAL APPROACHES (H. Osofsky & W. Burns eds., forthcoming 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1005345; Alice Kaswan, The Domestic Response to Global Climate Change: What Role for Federal, State, and Litigation Initiatives?, 42 U.S.F. L. REV. 39, 99-100 (2007) (explaining that some of the advantages of climate-change litigation are that "courts are insulated from the lobbying endemic in the legislative and regulatory process" and that courts can and must decide cases even as "legislatures are locked in political paralysis").
11. See, e.g., Joni Hersch & W. Kip Viscusi, Allocating Responsibility for the Failure of Global Warming Policies, 155 U. PA. L. REV. 1657, 1692-93 (2007) (arguing that climate-change litigation is not well suited to address the market failures involved, since the damages are largely for "prospective" harm); Shi-Ling Hsu, A Realistic Evaluation of Climate Change Litigation Through the Lens of a Hypothetical Lawsuit, 78 U. COLO. L. REV. (forthcoming 2008), available at http://works.bepress.com/cgi/viewcontent.cgi?article= 1005&context=shi_ling_hsu (stating that, rather than litigation, "broad-based legislative and international action must be the primary means of addressing the problem of global climate change"); Reimund Schwarze, Liability for Climate Change: The Benefits, the Costs, and the Transaction Costs, 155 U. PA. L. REV. 1947, 1947 (2007) ("[C]laims for climate change-related damages could become crushingly expensive and cause high transaction costs.").
12. Timothy D. Lytton, Using Litigation to Make Public Health Policy: Theoretical and Empirical Challenges in Assessing Product Liability, Tobacco, and Gun Litigation, 32 J.L. MED. & ETHICS 556, 556-57 (2004).
13. See id. at 560 ("Indeed, in many areas of life unregulated by statute, adjudication of common law claims has been the primary, or even sole, source of regulatory policies." (endnotes omitted)).
14. See generally id. (discussing the proper role of courts in making public-health policy and examining the arguments made by proponents on both sides of the debate).
15. FRANK R. BAUMGARTNER & BRYAN D. JONES, AGENDAS AND INSTABILITY IN AMERICAN POLITICS 31 (1993). This discussion of tort litigation as a policy venue is drawn from TIMOTHY D. LYTTON, HOLDING BISHOPS ACCOUNTABLE: HOW LAWSUITS HELPED THE CATHOLIC CHURCH CONFRONT CLERGY SEXUAL ABUSE (2008).
16. BAUMGARTNER & JONES, supra note 12, at 1-4, 19.
17. Id. at 19 (discussing "institutionally induced equilibria").
18. Id.
19. Id. at 20.
20. Id. at 20.
21. Id. at 25-30.
22. Id. at 25, 31-35.
23. Id. at 36.
24. Id. at 31.
25. Id. at 246-48.
26. See id. at 16-18, 25 (discussing the role of "positive feedback" in bringing about political change).
27. Id.
28. My analysis builds on the earlier studies of scholars such as Lynn Mather, Peter Jacobson, Kenneth Warner, and Wendy Wagner, who have developed detailed accounts of the ways in which tort litigation has complemented the policy-making efforts of legislatures, agencies, and private industry to affect tobacco-control policy. See generally Jacobson & Warner, supra note 2 (suggesting that although litigation serves a purpose, legislative and regulatory processes are still necessary to influence tobacco policy); Mather, supra note 2 (examining how tobacco litigation has changed tobacco policy); Wendy E. Wagner, Rough Justice and the Attorney General Litigation, 33 GA. L. REV. 935 (1999) (arguing that attorney-general litigation has had positive contributions to tobacco policy).
29. This discussion is drawn from Timothy D. Lytton, Introduction: An Overview of Lawsuits Against the Gun Industry to SUING THE GUN INDUSTRY, supra note 4, at 1. For more detail, see id. at 2-15 (discussing the rise of gun-industry litigation).
30. Id. at 6.
31. Id.
32. Id. at 7-11.
33. See, e.g., City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1106 (Ill. 2004) (describing the city's public-nuisance claim against a gun manufacturer); see also Timothy D. Lytton, The Complementary Role of Tort Litigation in Regulating the Gun Industry, in SUING THE GUN INDUSTRY, supra note 4, at 250, 257-58 (discussing id.).
34. See, e.g., City of Chicago, 821 N.E. 2d at 1106 ("[P]laintiffs seek ... permanent injunctive relief...."); see also Lytton, supra note 26, at 257-58 (discussing id.).
35. Lytton, supra note 26, at 166.
36. See Schuck, supra note 4, at 225, 226 (noting the lack of success in gun-industry tort litigation).
37. Lytton, supra note 26, at 5.
38. Id.
39. See Ileto v. Glock, Inc., 421 F. Supp. 2d 1274 (C.D. Cal. 2006) (dismissing a lawsuit against gun-industry defendants based on a federal immunity statute), appeal docketed, No. 06-56872 (9th Cir. Jan. 23, 2007); City of New York v. Beretta U.S.A. Corp., 429 F. Supp. 2d 517 (E.D.N.Y. 2006) (finding the federal immunity statute not applicable to a lawsuit brought by New York City against gun industry defendants), rev'd, No. 05-6942, 2008 WL 1884167, at *15 (2d Cir. Apr. 30, 2008); Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind. Ct. App. 2007) (finding federal immunity statute not applicable to lawsuit brought by the city of Gary, Indiana against gun-industry defendants).
40. See, e.g., City of New York v. Bob Moates' Sport Shop, Inc., No. 06-CV-6504, 2008 WL 427964 (E.D.N.Y. Feb. 15, 2008) (awaiting trial on Sept. 2, 2008); City of New York v. A-1 Jewelry & Pawn, Inc., 501 F. Supp. 2d 369 (E.D.N.Y. 2007).
41. John Sullivan, Three More Gun Dealers Settle Suit, N.Y. TIMES, Mar. 21, 2007, at B4. Because of legal restrictions on the use of federal crime-gun trace data, on which New York City's suit is based, it is unclear whether other cities could replicate this type of suit. See Timothy Lytton, The Sting, BOSTON GLOBE, Aug. 27, 2006, at D1.
42. This paragraph is drawn from Lytton, supra note 26, at 4.
43. Id.
44. Id.
45. WINDLE TURLEY & JAMES E. ROOKS, JR., FIREARMS LITIGATION 12 (1988).
46. See, e.g., Susan DeFrancesco, Children and Guns, 19 PACE L. REV. 275, 278-84 (1999) (listing gun designs that could improve safety); Garen J. Wintemute, The Future of Firearm Violence Prevention: Building on Success, 282 JAMA 475, 476 (1999) (identifying changes in gun designs in the mid-1990s).
47. Wintemute, supra note 43, at 475-77.
48. For a recent survey of this public-health approach to gun violence, see generally DAVID HEMENWAY, PRIVATE GUNS, PUBLIC HEALTH (2004).
49. WALTER K. OLSON, THE RULE OF LAWYERS: HOW THE NEW LITIGATION ELITE THREATENS AMERICA'S RULE OF LAW 101-02 (2003); TURLEY & ROOKS, supra note 42, at 12.
50. This paragraph draws on Lytton, supra note 6, at 164-66.
51. Id. at 165.
52. Id. at 164.
53. Id. at 165.
54. Wendy Wagner, Stubborn Information Problems & the Regulatory Benefits of Gun Litigation, in SUING THE GUN INDUSTRY, supra note 4, at 271, 278-79 (citing Memorandum from Steven M. Sliwa, CEO and President, Colt Mfg. Co. to Zilkha Capital Partners, Zilkha Venture Partners, and iColt (June 28, 1999)).
55. Id. at 279.
56. Id.
57. Declaration of Robert A. Ricker in Support of Plaintiffs' Opposition to Defendant Manufacturers' Motion for Summary Judgment ¶ 8, People v. Arcadia Mach. & Tool, Inc., No. 4095, 2003 WL 21184117 (Cal. Super. Ct. Apr. 10, 2003), aff'd sub. nom. In re Firearm Cases, 24 Cal. Rptr. 3d 659 (Cal. Ct. App. 2005).
58. Id. ¶¶ 9-13.
59. Lytton, supra note 38; Allen Rostron, Lawyers, Guns, & Money: The Rise and Fall of Tort Litigation Against the Firearms Industry, 46 SANTA CLARA L. REV. 481, 491-92 (2006) (reviewing SUING THE GUN INDUSTRY, supra note 4).
60. E.g., Hamilton v. Beretta, 750 N.E.2d 1055, 1059-60 (N.Y. 2001); see also Lytton, supra note 26, at 9-10 (discussing Hamilton).
61. Lytton, supra note 6, at 152.
62. See Andrew Taylor, Lawmakers Block Access to Gun Sales Data, WASHINGTONPOST.COM, July 12, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/07/12/AR2007071201290. html (describing the most recent failed attempt to eliminate the Tiarhrt Amendment).
63. A more current version of the Amendment is codified at 18 U.S.C. § 923 note (Supp. V 2000).
64. See James Bennet, Gun Makers Agree on Safety Locks, N.Y. TIMES, Oct. 9, 1997, at A1 (discussing gun manufacturers' voluntary decisions to provide child-safety locks with handguns); National Shooting Sports Foundation (NSSF), Safety and Education, http://www.nssf.org/safety/index.cfm? AoI=safety (promoting the gun safety programs of the foundation). The National Shooting Sports Foundation is the trade association of the firearm industry. National Shooting Sports Foundation (NSSF), About, http://www.nssf.org/about/ nssf.cfm?AoI=generic.
65. The discussion of gun kits draws on Lytton, supra note 30, at 252-54. The language in this paragraph appears in id. at 252.
66. 18 U.S.C. § 923(a).
67. Id. § 922(s).
68. Id. § 922(a)(2).
69. Id. § 923(d)(1).
70. 26 U.S.C. § 5842(a) (2000).
71. No. 95-3323 (E.D.N.Y. Apr. 1, 1998) (on file with author). For a detailed analysis of this unreported case, see generally Timothy D. Lytton, Halberstam v. Daniel and the Uncertain Future of Negligent Marketing Claims Against Firearms Manufacturers, 64 BROOK. L. REV. 681 (1998).
72. Lytton, supra note 68, at 686.
73. 18 U.S.C. § 921(a)(29)(B).
74. Lytton, supra note 30, at 252.
75. Lytton, supra note 68, at 695.
76. Lytton, supra note 30, at 252.
77. Lytton, supra note 68, at 695.
78. Id. at 695 & n.78.
79. Id. at 695.
80. Id. at 687.
81. Id.
82. Id. at 697-98. At trial, the defendants produced an affidavit and a deposition by the criminal assailant in which he stated that he had purchased the gun from someone on the street and that he had never had any business dealings with the defendants. Id. at 696.
83. Lytton, supra note 30, at 253.
84. Timothy D. Lytton, Lawsuits Against the Gun Industry: A Comparative Institutional Analysis, 32 CONN. L. REV. 1247, 1272 (2000).
85. See Lytton, supra note 68, at 705 ("In exceptional cases, selling firearms may be considered a substantial factor in bringing about injuries resulting from criminal misuse of a gun."). The practice of selling gun kits has not entirely ceased. The author found an AR15 rifle kit for Internet auction on BuySellGuns.com on September 21, 2007.
86. This discussion of enforcement draws on Lytton, supra note 30, at 263-64.
87. Id. at 263.
88. This discussion of federalism draws on id. at 264.
89. Id.
90. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.").
91. Lytton, supra note 30, at 264; see also PETER H. SCHUCK, THE LIMITS OF LAW: ESSAYS ON DEMOCRATIC GOVERNANCE 363-64 (2000) (discussing reasons why common law policy making can be problematic).
92. See Lytton, supra note 30, at 262-64, 269 (explaining how the information acquired by gun-litigation plaintiffs during discovery can serve to enhance legislative regulation and administrative oversight of the industry); SCHUCK, supra note 88, at 364-65 (emphasizing the innovation in policy that may result from tort litigation).
93. The following discussion of the Gauthe, Porter, and Geoghan cases draws on Timothy D. Lytton, Clergy Sexual Abuse Litigation: The Policymaking Role of Tort Law, 39 CONN. L. REV. 809, 815-17, 823 (2007) [hereinafter Lytton, Clergy Sexual Abuse]. The language in the next nine paragraphs appears in id. For a more complete history, see generally LYTTON, supra note 12, at 13-41; LEON J. PODLES, SACRILEGE: SEXUAL ABUSE IN THE CATHOLIC CHURCH (2007) (providing a history of clergy sexual abuse).
94. See JASON BERRY, LEAD US NOT INTO TEMPTATION: CATHOLIC PRIESTS AND THE SEXUAL ABUSE OF CHILDREN 14-15, 18, 25-26 (1992) (detailing the events in which Gauthe's sexual abuse came to light).
95. Id. at 23-26.
96. Petition for Damages ¶¶ 21-22, Gastal v. Hannan, No. 84-48175 (La. 15th Dist. June 27, 1984) (on file with author); see also Lytton, Clergy Sexual Abuse, supra note 90, at 815 (discussing id).
97. BERRY, supra note 91, at 168. For a detailed account of the case, see generally id. at 148-68; J. MINOS SIMON, LAW IN THE CAJUN NATION 134-63 (1993).
98. Evidence of increased litigation following the Gauthe case is largely anecdotal and based on interviews with plaintiffs' attorneys and victim advocates. See LYTTON, supra note 12, at 14-19) (discussing the "first wave" of sexual abuse lawsuits against the Catholic Church). For limited aggregate data suggesting an increase in litigation during this period, see id. at 49-54.
99. Id at 14-17.
100. Stephen Kurkjian, 68 Victims Settle Porter Case with Catholic Church, BOSTON GLOBE, Dec. 4, 1992, at 1.
101. Id.
102. Survivor Connections, Chronology: Frank Fitzpatrick vs. Father Porter, http://www.Survivorconnections.net/flfvsporter.html.
103. These and other details of the case can be found in ELINOR BURKETT & FRANK BRUNI, A GOSPEL OF SHAME: CHILDREN, SEXUAL ABUSE, AND THE CATHOLIC CHURCH 8-24 (1993).
104. LYTTON, supra note 12, at 25.
105. Id. at 24-25.
106. Michael Rezendesz, Church Allowed Abuse by Priest for Years, BOSTON GLOBE, Jan. 6, 2002, at A1.
107. Walter V. Robinson & Michael Rezendesz, Geoghan Victims Agree to $10M Settlement, BOSTON GLOBE, Sept. 19, 2002, at A1.
108. INVESTIGATIVE STAFF, BOSTON GLOBE, BETRAYAL: THE CRISIS IN THE CATHOLIC CHURCH 6, 14-16, 27 (2002) [hereinafter BETRAYAL].
109. Id. at 3, 14, 23, 26.
110. Id. at viii, x, 3, 14, 22, 24, 205-06.
111. Petition for Damages, supra note 93, ¶ 23.
112. First Supplemental and Amended Petition ¶ 5, Gastal v. Hannan, No. 84-48175-A (La. 15th Dist. Oct. 25, 1984) (on file with author).
113. Id.
114. Petition for Damages, supra note 93, ¶ 23(l)-(m).
115. See Lytton, Clergy Sexual Abuse, supra note 90, at 824-28 (describing press coverage of the Gauthe case).
116. See id. at 821-31 (describing press coverage of the Porter and Geoghan cases).
117. Id. at 830, 845.
118. Id. at 832.
119. See id. at 872-75 (describing public comments from Church officials acknowledging the institutional responsibility of the Church for clergy sexual abuse). For extensive evidence of these framing effects of clergy-sexual-abuse litigation, see generally LYTTON, supra note 12, at 91-107.
120. See id. at 147-52 (outlining the various techniques used by the church to frustrate discovery).
121. See, e.g., id. at 25 (discussing how the Porter case led many new victims to come forward).
122. JOHN JAY COLL. OF CRIMINAL JUSTICE, THE NATURE AND SCOPE OF SEXUAL ABUSE OF MINORS BY CATHOLIC PRIESTS AND DEACONS IN THE UNITED STATES 1950-2002 (2004) [hereinafter JAY STUDY]. For a summary and analysis of this report's findings, see generally LYTTON, supra note 12, at 42-54.
123. JAY STUDY, supra note 119, at 13-14.
124. Id. at 153-285.
125. See, e.g., ARCHDIOCESE OF CHICAGO, TEN YEAR REPORT ON CLERICAL SEXUAL ABUSE OF MINORS IN THE ARCHDIOCESE OF CHICAGO JANUARY 1, 1993-JANUARY 16, 2003 (2003), available at http://www.archchicago.org/pdf/ten_year_report.pdf; ARCHDIOCESE OF LOS ANGELES, REPORT TO THE PEOPLE OF GOD: CLERGY SEXUAL ABUSE, ARCHDIOCESE OF LOS ANGELES 1930-2003 (2004), available at http://www.bishop-accountability.org/usccb/natureandscope/dioceses/reports/ losangelesca-rptpdf; ARCHDIOCESE OF LOS ANGELES, ADDENDUM TO THE REPORT TO THE PEOPLE OF GOD (2005), available at http://www.archdiocese.la/protecting/pdf/Addendum- 11-15-05.pdf; Statement of Archbishop Sean P. O'Malley, Regarding Clergy Sexual Abuse in the Archdiocese of Boston from 1950-2003 (Feb. 26, 2004), available at http://www.rcab.org/News/releases/2004/statement040226.html; Press Release, U.S. Conference of Catholic Bishops, USCCB Efforts to Combat Clergy Sexual Abuse Against Minors: A Chronology 1982-2006, available at http://www.usccb.org/comm/combatefforts.shtml.
126. THOMAS F. REILLY, OFFICE OF THE ATT'Y GEN., THE SEXUAL ABUSE OF CHILDREN IN THE ROMAN CATHOLIC ARCHDIOCESE OF BOSTON (2003), available at http://www.bishopaccountability.org/ resources/resource-files/reports/ReillyReport.pdf.
127. Id. at 25 (emphasis omitted). Other findings included that Church officials: (1) "knew the extent of the clergy-sexual-abuse problem for many years before it became known to the public," (2) "did not notify law enforcement authorities of clergy sexual abuse allegations," (3) "did not provide all relevant information to law enforcement authorities during criminal investigations," (4) "failed to conduct thorough investigations of clergy sexual abuse allegations," (5) "placed children at risk by transferring abusive priests to other parishes," (6) "placed children at risk by accepting abusive priests from other dioceses," and (7) "failed to adequately supervise priests known to have sexually abused children." Id. at i-ii (emphasis omitted).
128. BishopAccountability.org, Catholic Priest Sex Abuse Archive, http://www.bishopaccountability.org. For an extensive review of the information generated by clergy-sexual-abuse litigation, see LYTTON, supra note 12, at 158-60.
129. These three paragraphs draw on LYTTON, supra note 12, at 125-26. The information in this paragraph relies on detailed accounts in BERRY, supra note 91, at 96-102, 110-12; JASON BERRY & GERALD RENNER, VOWS OF SILENCE: THE ABUSE OF POWER IN THE PAPACY OF JOHN PAUL II, at 48 (2004); BETRAYAL, supra note 105, at 39; BURKETT & BRUNI, supra note 100, at 164, 173; DAVID FRANCE, OUR FATHERS: THE SECRET LIFE OF THE CATHOLIC CHURCH IN AN AGE OF SCANDAL 230 (2004); Interview with Mark E. Chopko, General Counsel, U.S. Conference of Catholic Bishops (Mar. 22, 2006) (on file with author); Press Release, U.S. Conference of Catholic Bishops, supra note 122.
130. Press Release, U.S. Conference of Catholic Bishops, supra note 122.
131. Id.; see also Lytton, Clergy Sexual Abuse, supra note 90, at 863.
132. Id.
133. BURKETT & BRUNI, supra note 100, at 173.
134. Id. at 173-74.
135. See STEPHEN J. ROSSETTI, A TRAGIC GRACE: THE CATHOLIC CHURCH AND CHILD SEXUAL ABUSE 14 (1996) (discussing the November meeting of bishops); Harry J. Flynn, Dallas and Beyond: Perspectives of a Bishop and Pastor, in SEXUAL ABUSE IN THE CATHOLIC CHURCH: TRUSTING THE CLERGY? 13, 15 (Marie M. Fortune & W. Merle Longwood eds., 2003) (outlining the five principles that were proposed by the meeting of bishops).
136. FRANCE, supra note 126, at 230-31.
137. See PETER STEINFELS, A PEOPLE ADRIFT: THE CRISIS OF THE ROMAN CATHOLIC CHURCH IN AMERICA 50-52, 56-61 (2003) (detailing the committee approach taken by the Catholic Church in its response to the clergy-sexual-abuse scandals of the early 1990s); Flynn, supra note 132, at 15-17 ("[D]uring the years when most national media found little interest in the issue of sexual abuse of minors by clergy, dioceses were continuing to confront this problem....").
138. See FRANCE, supra note 126, at 362.
139. See Raymond O'Brien, Clergy, Sex and the American Way, 31 PEPP. L. REV. 363, 408-09 (2004) (discussing the adoption of the Charter and its "goal of zero-tolerance"). 137. Id. at 423-28.
140. Id. at 408-46.
141. See A Look at the Impact of the Roman Catholic Sex Abuse Scandal on the States, BOSTONGLOBE.COM, Apr. 27, 2002, http://www.boston.com/news/daily/27/church_abuse_glance.htm (detailing incidents and responses in the fifty states); see also, e.g., DIOCESE OF MANCHESTER, DIOCESAN TASK FORCE ON SEXUAL MISCONDUCT POLICY: REPORT TO THE BISHOP OF MANCHESTER (2003), available at http://www.bishop-accountability.org/resources/resource-files/reports/ ManchesterTaskForceReport.pdf (making recommendations on reforming the diocese's sexual-misconduct policy).
142. These two paragraphs draw on Lytton, Clergy Sexual Abuse, supra note 90, at 867-68. The language in this particular paragraph appears in id. at 867.
143. Id.
144. Id.
145. See SIMON, supra note 94, at 137, 141 (describing Stansbury's desire to preserve the established order of things and his failure to allow a grand jury to review the evidence until after Simon's clients went public and news reports appeared). But see BERRY, supra note 91, at 20, 25, 49-50, 118-19, 121-24 (portraying Stansbury as pursuing a prompt and vigorous prosecution based on his own desire to see Gauthe punished for his crimes).
146. The rest of this paragraph relies on FRANCE, supra note 126, at 208-11, 215, and BURKETT & BRUNI, supra note 100, at 13-17. Language in this paragraph appears in Lytton, Clergy Sexual Abuse, supra note 90, at 868.
147. Lytton, Clergy Sexual Abuse, supra note 90, at 868.
148. BURKETT & BRUNI, supra note 100, at 14-15.
149. Id. at 15.
150. PHILIP JENKINS, PEDOPHILES AND PRIESTS: ANATOMY OF A CRISIS 36, 48 (1996).
151. See, e.g., Jesse Belcher-Timme, Note, Unholy Acts: The Clergy Sex Scandal in Massachusetts and the Legislative Response, 30 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 243, 270-72 (2004) (describing various state policy initiatives designed to prevent future clergy sexual abuse). For a more detailed discussion, see LYTTON, supra note 12, at 132.
152. U.S. CONFERENCE OF CATHOLIC BISHOPS, CHARTER FOR THE PROTECTION OF CHILDREN AND YOUNG PEOPLE (2002), available at http://www.usccb.org/ bishops/charter_final.pdf.
153. Id. at 15.
154. U.S. CONFERENCE OF CATHOLIC BISHOPS, REPORT ON THE IMPLEMENTATION OF THE CHARTER FOR THE PROTECTION OF CHILDREN AND YOUNG PEOPLE 17-19 (2006), available at http://www.usccb.org/ocyp/OCYPREPORT.pdf. For a more extensive analysis of the Church's internal efforts to respond to clergy sexual abuse, see LYTTON, supra note 12, at 172-76.
155. Jerry Filteau, New, Stricter Priestly Formation Program Issued for U.S. Catholic Seminaries, CATHOLIC ONLINE, Aug. 29, 2006, http://www.catholic.org/national/national_story.php?id=21058.
156. See supra notes 40-46 and accompanying text.
157. See Pub. L. No. 92-573, § 3, 86 Stat. 1208 (1972) (codified as amended at 15 U.S.C. § 2052(a)(1)(E) (2000)) (excluding firearms and ammunition from the definition of the term "consumer product").
158. Act of Feb. 8, 1927, ch. 75, 44 Stat. 1059 (codified as amended at 18 U.S.C. § 1715 (2000)).
159. 48 Stat. 1236 (1934) (codified as amended at 26 U.S.C. §§ 5801-5872 (2000)).
160. 52 Stat. 1250 (1938) (repealed 1968).
161. John Gibeaut, A Shot at the Second Amendment, A.B.A. J., Nov. 2007, at 50, 50.
162. See, e.g., Protection of Lawful Commerce in Arms Act, Pub. L. No. 109-92, § 2(a)(1)-(2), 119 Stat. 2095 (2005) (to be codified at 15 U.S.C. § 7901) (stating in Congressional findings that "[t]he Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms").
163. See supra notes 51-53 and accompanying text.
164. See supra notes 54-55 and accompanying text.
165. See Wagner, supra note 51, at 285-86 (describing the lack of "smoking gun" evidence in gun litigation). But see Rostron, supra note 56, at 489-93 (noting that "significant incriminating evidence" has begun to emerge through the course of gun litigation).
166. See supra notes 68-82 and accompanying text.
167. Lytton, supra note 30, at 260-61.
168. This paragraph and the next draw on Lytton, supra note 38.
169. Id.
170. Id.
171. Id.
172. Id.
173. Pub. L. No. 99-308, 100 Stat. 449 (1986) (codified at 18 U.S.C. §§ 921-930 (2000)).
174. See David T. Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 CUMB. L. REV. 585, 606 n.118 (1986-1987) (detailing numerous Senate hearings on abuses of enforcement powers by the BATFE).
175. Id. at 585.
176. Lytton, supra note 38.
177. City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1106 (111. 2004).
178. Id. at 1132.
179. See LYTTON, supra note 12, at 174-75.
180. Id. at 175.
181. See Laune Goodstein, California Dioceses Brace for New Abuse Suits as Law Allows Litigation of Old Cases, N. Y. TIMES, Dec. 6, 2002, at A28 (describing the efforts of two lawyers taking clients to legislators to describe past clergy sexual abuse).
182. See Belcher-Timme, supra note 149, at 243, 270-72 (recommending legislative changes aimed at more effective prosecution of those involved in clergy sexual abuse and its cover-up).
183. This paragraph draws on LYTTON, supra note 12, at 192.
184. See BARBARA J. NELSON, MAKING AN ISSUE OF CHILD ABUSE: POLITICAL AGENDA SETTING FOR SOCIAL PROBLEMS 127 (1984) (noting that the governmental concern over child abuse and neglect was part of "a larger social current" including civil rights, welfare rights, and feminist movements, all of which "captured the imagination of many people").
185. See DEBBIE NATHAN & MICHAEL SNEDEKER, SATAN'S SILENCE: RITUAL ABUSE AND THE MAKING OF A MODERN AMERICAN WITCH HUNT 4 (1995) (comparing the high-profile ritual-child-sexual-abuse prosecutions of the 1980s and early 1990s to "the crusades of the McCarthy era" and "the Salem witch trials"); DOROTHY RABINOWITZ, NO CRUELER TYRANNIES: ACCUSATION, FALSE WITNESS, AND OTHER TERRORS OF OUR TIMES (2003) (recounting the facts of a number of well-known ritual-child-sex-abuse accusations and prosecutions).
186. See Anson Shupe, Economic Fraud and Christian Leaders in the United States, in WOLVES WITHIN THE FOLD: RELIGIOUS LEADERSHIP AND ABUSES OF POWER 49, 57-58 (Anson Shupe ed., 1998) (summarizing the sexual and financial scandals surrounding prominent televangelists Oral Roberts, Jimmy Swaggart, and Jim Bakker in the late 1980s).
187. See BRYAN D. JONES & FRANK R. BAUMGARTNER, THE POLITICS OF ATTENTION: HOW GOVERNMENT PRIORITIZES PROBLEMS 139 (2005) (discussing self-reinforcing "stochastic mechanisms" that help explain "the observed complexity in any given case of policy change").
188. Id. at 140-41.
189. Id. at 140.
190. See, e.g., Ex parte Zoghby, 958 So.2d 314, 326 (Ala. 2006) (finding that the trial court did not exceed the scope of its discretion in ordering discovery of documents that the defendant priest claimed were protected by the clergyman privilege); People v. Campobello, 810 N.E.2d 307, 317 (Ill. App. Ct. 2004) ("We reject the Diocese's attempt to conjure a right to secrecy, and with it immunity from the State's subpoena power, simply by pointing to the veil it has cast over itself.").
191. See, e.g., SIMON, supra note 94, at 141 (attributing the ultimate willingness of law enforcement to investigate and prosecute Gauthe to the public's awareness and the media's coverage of the civil suits).
192. See LYTTON, supra note 12, at 140-43 (analyzing the Church's failure to address the problem of clergy sexual abuse prior to 1984).
193. Id. at 144-45.
194. JONES & BAUMGARTNER, supra note 185, at 145.
195. We should be careful not to overstate the case. It would be inaccurate to say that there was no policy-making activity among the bishops in the years between the Gauthe and Porter cases (1985-1991) and the Porter and Geoghan cases (1994-2001). National Council of Catholic Bishops (NCCB) staff and subcommittees were busy gathering information and assisting individual dioceses in developing new policies during both of these periods. Nevertheless, friction remained and gave rise to jumps in policy. For a more nuanced account, see generally LYTTON, supra note 12, at 13-41.
196. See Allen Rostron, Shooting Stories: The Creation of Narrative and Melodrama in Real and Fictional Litigation Against the Gun Industry, 73 UMKC L. REV. 1047, 1069-70 (2005) (discussing the difficulty of translating municipal gun claims into compelling narratives). It has been suggested that the success of clergy-sexual-abuse litigation is partly attributable to the lack of a counter-narrative. That is, whereas in gun litigation the plaintiffs' gun-violence narrative was countered by the gun industry's gun-rights narrative, in clergy-sexual-abuse litigation no one countered the plaintiffs' institutional-failure narrative with a defense of child sexual abuse. But this misconstrues the analogy. In the gun-litigation context, the counter-narrative was not a defense of the problem of which the plaintiffs complained - gun violence - but rather concern over the danger that litigation would undermine widespread private gun ownership, which gun-rights advocates portray as essential to liberty. Similarly, in the clergy-sexual-abuse-litigation context, the counter-narrative was not a defense of child sexual abuse but rather concern over the danger that litigation would interfere with the Church's ability to deal with what it considered its own internal affairs without government interference - an ability Church defenders argue is essential to religious liberty. See, e.g., Mark E. Chopko, Shaping the Church: Overcoming the Twin Challenges of Secularization and Scandal, 53 CATH. U. L. REV. 125, 132-34 (2003) (describing the threat of litigation to the independence of the Church). This counter-narrative of religious liberty was widely promulgated by Church officials in the early years of the scandal. See generally id. at 132-47. That concerns about Church autonomy have been so thoroughly eclipsed by the story of institutional failure is evidence of just how successful litigation has been in framing the issue of clergy sexual abuse.
197. See Hsu, supra note 8 (manuscript at 11-12) (discussing civil lawsuits filed against private entities responsible for emitting greenhouse gases).
198. Id. at 8-14. See also Hunter, supra note 7 (manuscript at 3) (citing several recent climate-change lawsuits).
199. 406 F. Supp. 2d 265 (S.D.N.Y. 2005), appeal docketed, No. 05-5104 (2d Cir. June 7, 2006). For a discussion of this case and other global-warming litigation, see generally Tom Lindley & Steve Higgs, Climate Change on Trial, OR. INSIDER, Apr. 2007, at 1.
200. Complaint at 1, Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005) (No. 04 Civ. 5669), available at http://www.oag.state.ny. us/press/2004/jul/jul21a_04_attach.pdf.
201. Id.
202. Id. at 49.
203. Lindley & Higgs, supra note 197, at 3.
204. No. C06-05755, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007), appeal docketed, No. 07-16908 (9th Cir. Oct. 24, 2007); see also Lindley & Higgs, supra note 197, at 3.
205. Second Amended Complaint at 2, General Motors, 2007 WL 2726871.
206. General Motors, 2007 WL 2726871, at *1, appeal docketed, No. 07-16908 (9th Cir. Oct. 24, 2007); see also Lindley & Higgs, supra note 197, at 3 (discussing General Motors in the context of global-warming litigation).
207. No. 1:05-CV-00436 (S.D. Miss. Aug. 30, 2007), appeal docketed, No. 07-60756 (5th Cir. Sept. 28, 2007).
208. Third Amended Class Action Complaint at 1-8, Comer, No. 1:05-CV-00436, 2006 WL 1474089.
209. Id. at 19-20; see also Lindley & Higgs, supra note 197, at 3-4.
210. Order Granting Defendants' Motion to Dismiss at 1-2, Comer, appeal docketed, No. 07-60756 (5th Cir. Sept. 28, 2007).
211. Hunter, supra note 7 (manuscript at 1-2).
212. Id. at 4.
213. Id.
214. Id.
215. Id.
216. Id. at 6, 7.
217. Id. at 15.
218. Id. at 13.
219. Id. at 17, 19.
220. Kaswan, supra note 7, at 104-05.
221. Id. at 100.
222. Id.; see also Kirsten Engle, Harmonizing Regulatory and Litigation Approaches to Climate Change Mitigation: Incorporating Tradable Emissions Offsets into Common Law Remedies, 155 U. PA. L. REV. 1563, 1570-77 (2007) (arguing that the unpredictability of piecemeal environmental regulation leads industries to support comprehensive federal regulation that they otherwise might not).
223. Kaswan, supra note 7, at 108-09.
224. Id. at 108.
225. Buzbee, supra note 7, at 1617-18 (footnotes omitted).
226. Id. at 1618-19.
227. See generally LYTTON, supra note 12, at 81-136 (discussing analogous techniques in clergy-sexual-abuse litigation).
228. Media scholars have suggested that media coverage of an issue - as measured by the placement and the volume of stories - offers a proxy for public awareness of and concern about an issue. See SHANTO IYENGAR & DONALD R. KINDER, NEWS THAT MATTERS: TELEVISION AND AMERICAN OPINION 16 (1987) ("Those problems that receive prominent attention on the national news become the problems the viewing public regards as the nation's most important."); John Bohte et al., One Voice Among Many: The Supreme Court's Influence on Attentiveness to Issues in the United States: 1947-1992, in LEVERAGING THE LAW: USING THE COURTS TO ACHIEVE SOCIAL CHANGE 23-24 (David Schultz ed., 1998) (arguing that relations between the media and the public are reciprocal in that market forces dictate that the media follow stories that attract audiences, while media coverage helps shape public opinion).
229. See Lytton, Clergy Sexual Abuse, supra note 90, at 875-77 (arguing that clergy-sexual-abuse litigation shaped the opinions of both the public and policy makers as evidenced by public-opinion polls and media coverage).
230. See Dan M. Kahan, Donald Braman & John Gastil, A Cultural Critique of Gun Litigation, in SUING THE GUN INDUSTRY, supra note 4, at 105-06 (arguing that gun-industry litigation is shaped primarily by the "cultural priors" of society).
231. For an argument that gun litigation had no effect on public and official views, see generally id. See also Rostron, supra note 56, at 500-02 ("It remains to be seen whether the litigation will have any lasting effect on attitudes toward the industry and gun violence, especially now that federal immunity legislation could put an end to tort litigation concerning guns.").
232. Hunter, supra note 7 (manuscript at 4).
233. Kaswan, supra note 7, at 104-05, 108. See also id. at 70 (quoting another scholar that "the problem of climate change lends itself to the perversion of the public interest by special-interest industry groups with a vested economic stake in the United States' continued reliance upon fossil fuels").
234. This paragraph and the next draw from Lytton, supra note 6, at 158-60.
235. THE FEDERALIST NO. 73, at 443-44 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
236. See generally THE FEDERALIST NO. 10 (James Madison) (discussing the virtue of multiple competing interests and the moderating effects of such competition on the outcome of legislation).
237. WILLIAM N. ESKRIDGE, PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 66-67 (3d ed. 2001).
238. See 153 CONG. REC. D1674 (daily ed. Dec. 31, 2007) (Final Résumé of Congressional Activity for the Second Session of the 109th Congress); 152 CONG. REC. D158 (daily ed. Mar. 2, 2006) (Final Résumé of Congressional Activity for the First Session of the 109th Congress).
239. See generally New York State Legislative Retrieval Service, www.nyslrs.state.ny.us.
240. This paragraph relies on SCHUCK, supra note 88, at 204-50.
241. Id. at 204 (citing THE FEDERALIST No. 10, at 77 (James Madison) (Clinton Rossiter ed., 1961)).
242. National Rifle Association, Institute for Legislative Action: About, http://www.nraila.org/ About (stating that the NRA has "more than 4 million members"); see also Elizabeth Olson, Amassing the Troops for Political Battle, N.Y. TIMES, May 4, 2006, at C7.
243. Sierra Club Home Page, http://www.sierraclub.org.
244. See Lytton, supra note 6, at 155-60.
245. See, e.g., City of Chicago v. Beretta, 821 N.E.2d 1099, 1106 (111. 2004) ("Any change of this magnitude in the law affecting a highly regulated industry must be the work of the legislature, brought about by the political process, not the work of the courts.... [W]e point to the virtue of judicial restraint."); Protection of Lawful Commerce in Arms Act, Pub. L. No. 109-92, § 2(a)(8), 119 Stat. 2095 (2005) (to be codified at 15 U.S.C. § 7901) (specifically listing as a congressional finding the "attempt to use the judicial branch to circumvent the Legislative branch").
246. Kaswan, supra note 7, at 69-71.