"Cigarettes, Bribes, and Personal Responsibility"

by Ronald J. Rychlak - January 29, 2008

Reprinted with permission.

It is not often that my little town of Oxford, Mississippi makes the national news, but it happened recently. One of our best-known citizens, attorney Richard "Dickie" Scruggs, was arrested along with a few other attorneys, including Scruggs's son, Zach. According to prosecutors, the Scruggs team tried to bribe a judge for a favorable ruling in a case involving a dispute over legal fees.

Scruggs first gained national notoriety in 1994, when Mike Moore (the former Mississippi attorney general, not to be confused with Michael Moore the filmmaker) hired him to assist with a lawsuit against several big tobacco companies. Up until this time, "big tobacco" won every time it was sued. Scruggs helped to change that.

The typical legal action against tobacco companies is a tort lawsuit. Tort theory is based on a fairly simple principle: When someone causes harm to another, it is appropriate that the offender make it right. He or she may offer to repair the damage or pay for a replacement; perhaps the victim will fully or partially forgive the wrongdoer. If none of that resolves the matter, however, the parties are likely to end up in court, litigating a tort suit.

A just tort system serves the common good by assuring that those who have been injured by another will be compensated, and by letting those who have caused the harm know that they have to fix it. In this way, tort law recognizes personal responsibility and the role of free will in interpersonal relations. Of course, a tort system that holds innocent parties responsible is not just.

A couple of years ago I wrote a short book for the Acton Institute titled Trial by Fury, explaining how modern courts often look not at who is responsible for the harm but who can better bear the risk (or afford the loss). Those parties are often made to pay, even if they did not actually cause the injury. Courts deciding on this basis, of course, are not resolving disputes based on facts and law; they are making policy judgments based on social factors. That is not the proper role of the judiciary.

When smokers sued tobacco companies, the companies always won because the smokers had exercised their free will when they smoked. They, not the tobacco companies, were responsible for their own actions. A court properly applying tort law had to deny them recovery. Scruggs and Moore recognized this, so they approached their lawsuit from a different angle.

Modern health care systems are set up so that states pay for much of the treatment. Accordingly, Scruggs and Moore did not seek compensation for smokers; rather, they requested that the tobacco companies be ordered to reimburse the states for the costs of treating smoking-related diseases.

Since the states were the plaintiffs, tobacco companies did not have the typical defense that the plaintiff freely chose to smoke while being fully aware of the risks. (Though one has to wonder: Didn't the states know of the risks associated with assuming such a significant part of the health care system?) As such, several pre-trial rulings went against big tobacco, and they eventually settled the case by agreeing to pay $246 billion to the states.

There have been many questions about how the tobacco award money is being used by the states, and people are starting to ask questions about whether the judicial rulings in that case were influenced by illegal payments. For me, however, the more significant question has always been whether the tobacco case damaged tort law itself by eliminating free will and personal responsibility from the equation. Those issues form the basis of our judicial system; we eliminate them at great risk to the common good.

Scruggs has been a great friend and benefactor to the University of Mississippi, where I work. His son is my former student, and I have always thought very highly of him. Nevertheless, the early evidence looks bad for the defendants. They are, of course, entitled to a trial and the presumption of innocence. If they are able to beat these charges, it will probably be because criminal law, more than modern tort law, is greatly dependant upon issues of free will and personal responsibility.

Ironic, isn't it?

Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).