Remarks of Senator Mitch McConnell
“Restoring Responsibility-Litigation, Victimization, and
the Corruption of Culture”
Free Congress Research and Education Foundation
Thursday, April 10, 2003

I commend the Free Congress Foundation for hosting this discussion on how our increasingly litigious culture has negatively impacted our society. I’d like to discuss one aspect of that problem with which, as a federal legislator, I am quite familiar: the phenomenon of “regulation through litigation.”

A few years ago, during the debate on class actions against tobacco companies, gun manufacturers, and lead paint companies, the satirical publication, “The Onion”, wrote a spoof piece titled “Hershey’s Ordered To Pay Obese Americans $135 Billion.”

It began, “In one of the largest product-liability rulings in U.S. history, the Hershey Foods Corp. was ordered by a Pennsylvania jury to pay $135 billion in restitution to 900,000 obese Americans who for years consumed the company’s fattening snack foods.”

The article went on: “‘Let this verdict send a clear message to ‘Big Chocolate,’ said Pennsylvania[‘s] Attorney General . . . addressing reporters following the historic ruling. ‘If you knowingly sell products that cause obesity, you will pay.’”

The article continued by saying that “The five-state class-action suit accused Hershey’s of ‘knowingly and willfully marketing rich, fatty candy bars containing chocolate and other ingredients of negligible nutritional value.’ The company was also charged with publishing nutritional information only under pressure from the government, marketing products to children, and artificially ‘spiking’ their products with such substances as peanuts, crisped rice, and caramel to increase consumer appeal.”

The article went on to discuss the use of class action litigation to force chocolate manufacturers to adopt policies preferred by the plaintiffs. It concluded by saying that “Whatever the outcome of Hershey’s appeal, the chocolate industry has irrevocably changed as a result of [the] verdict.”

Now, when I read this piece in The Onion a few years ago, I thought it was quite creative. But it turns out that The Onion was not merely creative. It was, in fact, prescient.

A few months ago, I read another article-this one, a real news story-entitled “Ailing Man Sues Fast-Food Firms.” The article began: “Want a class-action lawsuit with that burger?”

It reports that a lawyer “has filed suit against the four big fast-food corporations, saying their fatty foods are responsible for his client’s obesity and health-related problems.”

The lawyer filed his lawsuit in state court in the Bronx, “alleging that McDonald’s, Burger King, Wendy’s and KFC Corporation are irresponsible and deceptive in the posting of their nutritional information, that they need to offer healthier options on their menus, and that they create a de facto addiction in their consumers, particularly the poor and children.”

The lawyer said: “You don’t need nicotine or an illegal drug to create an addiction, you’re creating a craving.”

The lead plaintiff, a 56 year-old maintenance supervisor, said he “trace[d] it all back to high fat, grease and salt, all back to McDonald’s, Wendy’s, Burger King.” He said, “there was no fast food I didn’t eat, and I ate it more often than not because I was single, it was quick, and I’m not a very good cook. It was a necessity, and I think it was killing me, my doctor said it was killing me, and I don’t want to die.”

The attorney “aim[ed] to make [his case] into a class action lawsuit”, with the ultimate goal “to force the fast-food industry ‘to offer a larger variety to the consumers, including non-meat vegetarian, less grams of fat, and a reduction’” in meal size.

By the way, damages in the case were unspecified. Given the horror stories we’ve heard of plaintiffs getting the short-end of the stick in class action cases, the plaintiffs better hope that class action reform gets enacted before their case is resolved, lest their lawyer bank all the cash, while they’re stuck with a coupon for one of these french fry boxes, as the result of a “drive-by”-or should I say, “drive-through”-settlement.

Alas, the lawyer has decided to leave this case dormant and file another on behalf of obese children to avoid “the argument that adults are solely responsible for their own personal choices.” A novel concept indeed. Evidently, he believes that McDonald’s counter-argument of “moderation and exercise” will be less effective if the plaintiffs are sedentary kids with senseless parents, rather than just senseless adults as plaintiffs.

An obviously disturbing thing about lawsuits against “Big-Fast Food” is that they promote a culture of victimhood and jettison the principle of personal responsibility. But an equally-disturbing aspect, and one which particularly concerns me in my role as a U.S. Senator, is that such cases circumvent legislative decisions and subvert the democratic process.

No branch of government should mandate that Burger King and McDonald’s carry veggie burgers for portly patrons. But even if that’s something government should do, it shouldn’t be the judicial branch that does it, particularly a state court setting national culinary policy.

Regulation by Litigation
I have been a legislator for almost two decades, so I have had a pretty good view of the legislative process. As you can gather, I have strong views on which is the appropriate branch of government in a democracy to set policy. That branch is the legislature, and as for national policy, it is the Congress.

There are those who believe that legislatures, including the Congress, move too slowly or are captives of special interests and therefore do not further the nation’s wishes. These people believe that lawyers and judges should take it upon themselves to substitute their policy preferences for those whom the citizenry elected to make policy. This assumption of the legislative function by lawyers and judges has resulted in “regulation through litigation.”

The Problem
Under this practice, the legal process is used not to compensate parties who are injured due to the breach of an existing and recognized duty. Rather, the judicial system is used to impose new duties, after the fact, on lawfully-run, though politically incorrect, industries.

There are serious problems with the efficacy of making broad policy changes through litigation. I will mention only a couple. First, legislatures make law prospectively. This gives the public notice in advance of the standards that will govern their conduct. Judges in these cases, however, make law retroactively, which does not provide fair notice to the public.

Second, courts are not the best suited to solve complex public policy problems. Unlike legislatures, judges cannot gather facts from a broad range of sources. Judges, rather, are confined to arguments made in court.

The more fundamental problem with “regulation through litigation” is that private parties obtain through lawsuits what legislatures have not chosen, or even have chosen to reject.

The States’ Tobacco Suits
The lawsuits against the tobacco companies to recover Medicaid costs is an example. State legislatures could have chosen to impose additional taxes on the tobacco companies if they felt the companies should pay the states for Medicaid costs. Their legislatures, however, chose not to. So state attorneys’ general went around the legislative process and hired lawyers to do much the same thing by suing the tobacco companies.

This phenomenon did not end with the settlement of the tobacco lawsuits. Current class actions against manufacturers of firearms and fast food companies are in the same vein: makers of lawful products are being sued so they will change their products or offer different products-such as particular types of trigger locks or veggie burgers-even though the law or the public doesn’t require, or desire, them to do so (remember how big of a hit McDonald’s veggie burgers were with customers!).

To quote former Secretary of Labor under President Clinton, Robert Reich: “The era of big government may be over, but the era of regulation through litigation has just begun.”

The Solution
What can be done about “regulation through litigation”? We can, of course, enact legislation. For example, the Senate Judiciary Committee today tried to mark-up the Class Action Reform bill, of which I am a co-sponsor. Whether it’s lawsuits against “Big Tobacco,” “Big Fast-Food” or “Big Chocolate,” these cases invariably take the form of class actions. The Class Action reform bill will prevent forum shopping, where plaintiff-friendly county courts set national, regulatory policy.

And we can enact measures to make sure that politically-incorrect industries are not unfairly targeted by opportunistic trial lawyers. For example, Senator Larry Craig’s “Lawful Commerce In Arms Act” would protect gun makers from being sued due to the illegal use by third parties of lawful products.

These measures will not be easy to pass in a closely-divided Senate. But it is important to enact them, along with reforms of our medical liability and asbestos litigation systems.

But the problems these bills would address are just symptoms of our litigious culture. We need to change people’s attitudes so they are less likely to feel they should “sue first and ask questions later.” Such societal changes rarely come from legislation. They come from the hard work of folks like the Free Congress Foundation and events like this one.

I’d like to thank Paul Weyrich, Marrion Harrison, and the rest of the people from the Free Congress Foundation for inviting me to speak. It is doing important work, and I wish you all good luck. Thank you.