Export Tobacco Article - Pol Sci - Stag Hunting with the State AG

Stag Hunting with the State AG:
Anti-Tobacco Litigation and the Emergence of
Cooperation Among State Attorneys General*

THOMAS A. SCHMELING

Employing a critical-mass theory of collective action, this article models the emergence of cooperation among state attorneys general in litigation against the tobacco industry. These suits were not independent events, nor was cooperation based on prior agreement among the attorneys general. Rather, cooperation emerged over time as a result of interdependent decision-making, with early law- suits increasing the likelihood of later suits. The model emphasizes the “production function” of the collective good and the heterogeneity of the attorneys general and their political environments as keys to the development of cooperation. The model is tested against data using event history analysis.

I. INTRODUCTION

If it was a matter of hunting a deer, everyone well realized that he must remain faithfully at his post; but if a hare happened to pass within the reach of one of them, we cannot doubt that he would have gone off in pursuit of it without scruple and, having caught his own prey, he would have cared very little about having caused his companions to lose theirs.
– Jean Jacques Rousseau, Discourse on the Origin and Foundation of Inequality Among Men (Second Discourse)

The image that comes to my mind is a fox hunt, where you have 30 dogs chasing a lone fox through the forest. [Once tobacco foes] got enough dogs together to cover the forest . . . the fox is cornered and makes a deal.
– Steven Gillers

In the past two decades, the state attorneys general (SAGs) have gone from a position of relative obscurity to one of undoubted signiﬁcance as “important policymakers at the national level” (Clayton 1994:526). This transformation has been attributed in large part to the role SAGs have played in ﬁlling the regulatory vacuum that resulted from the withdrawal of federal supervision, particularly in consumer protection, but it is equally the result of a new and quite remarkable level of cooperation that has been achieved among the SAGs themselves. Acting together, the SAGs have won legal settlements or concessions from tobacco companies, auto manufacturers, toy makers, paint producers, and others, agreements that would have been quite unlikely if sought by individual SAGs acting alone. Unlike Rousseau’s stag hunters, the state attorneys general have achieved the level of cooperation that leads to bigger game.

The SAG litigation against the tobacco industry is a dramatic illustration of this cooperation among the attorneys general. Between March 1994 and September 1998, the attorneys general of forty-two states ﬁled lawsuits against the major tobacco companies, seeking compensation for Medicaid funds that had been paid by the state to treat the smoking-related diseases of their citizens. The suits ended in late 1998, with a Master Settlement Agreement (MSA) in which the industry agreed to pay forty-six states $206 billion over twenty-ﬁve years.[1] For political scientists and other students of public policy, the suits are important for what they tell us about the policymaking process (Derthick 2002), the trend toward “regulation through litigation” (Crenson & Ginsberg 2002), the role of trial courts in policymaking (Mather 1998), and the growth of the state attorney general’s ofﬁce as a vehicle for policy entrepreneurship (Spill, Licari & Ray 2002).

To date, however, research on the tobacco litigation has not focused speciﬁcally and systematically on the development of SAG cooperation. The premise of this paper is that this cooperation among SAGs is itself a worthy object of study. The level of cooperation that was achieved raises some intriguing questions for the student of the policy process: How did the SAGs, representing independent states with diverse populations, politics and interests, successfully coordinate action in the absence of prior agreement or a superior authority to enforce cooperation? What can this cooperation tell us about the potential for other types of coordinated litigation? This article is an attempt to explore these issues by examining how cooperation emerged among SAGs in the seminal case of litigation against the tobacco industry.

I begin by arguing that the tobacco litigation is best understood not as a set of independent lawsuits but as an example of collective action and show how the litigation effort presented a collective action problem threatened cooperation among the SAGs. I then present a theory of collective action that provides a framework for analyzing the SAG suits. The theory, developed by Pamela Oliver and Gerald Marwell (Oliver, Marwell & Teixeira 1985; Marwell & Oliver 1993; Oliver & Marwell 2001), explains how collective action can emerge under appropriate conditions determined by the “production func- tion” of the collective good at which the action is aimed and the degree of heterogeneity in the group of potential contributors. I apply the theory to the tobacco litigation and develop a set of hypotheses that are tested with a statistical model. The results suggest the utility of the Oliver and Marwell model for understanding the emergence of SAG cooperation on this issue.

II. THE SAG TOBACCO LITIGATION AS COLLECTIVE ACTION

Since the 1960s, numerous suits have been ﬁled against tobacco companies by those who suffer from smoking-related diseases or their heirs. Through the 1990s, only one of these suits was successful, and that verdict was over- turned on appeal. The tobacco industry’s success was the result of a com- bination of at least three factors: the companies’ aggressive litigation practices, the legal rules under which the cases were tried, and juries who reﬂected public opinion that smokers were responsible for their own illnesses. The companies’ strategy was to refuse to settle, to exhaust the resources of chal- lengers though delay and extensive pretrial motions, to take each case that survived discovery to trial, and to appeal any unfavorable verdicts. Faced with uncertain gains that could only be had after years of litigation and appeals, lawyers who might have taken tobacco cases on a contingency basis shied away (Crenson & Ginsburg 2002:157).

The SAG suits attempted to alter the situation by presenting a new cause of action that avoided the old difﬁculties. The initial suit was ﬁled in May 1994 by Michael Moore in a Mississippi chancery court, where it would be heard by a judge rather than a jury. Rather than using a traditional tort cause of action of liability to the smoker, Attorney General Moore argued that the tobacco companies were liable to the state itself for reimbursement for the costs of medical care of sick smokers. This legal approach also meant that the tobacco companies traditional defenses were not available: even if the smokers themselves had assumed the risk of smoking, the state certainly had not. Another beneﬁt of this strategy for Moore was that: Because of its peculiar legal rules, chancery court offered . . . another beneﬁt: He could demonstrate the health toll of cigarettes by using gross statistics, instead of the burdensome task of providing evidence on every single smoker’s ills. That denied the industry its most valuable defense. (Mintz & Connolly 1998:A-1)

Thus, Moore sought to alter the rules of the legal game to create a situation more favorable to success against tobacco companies. This strategy soon drew the attention of other SAGs, and by the end of 1994, Minnesota and West Virginia had ﬁled similar suits.

Despite the new legal strategy, however, the SAG tobacco suits were seen as long-shot cases. Some SAGs refused to ﬁle on the grounds that the chance of success was too remote. M. Jane Brady, Attorney General of Delaware, explained her failure to ﬁle suit by her judgment that the Delaware Court of Chancery “was not likely to impose liability based upon novel theories of liability” (Manhattan Institute 1999:36). Critics argued that the tobacco suits were “not only unprecedented, they encroached on policy questions that are properly aired in legislative, rather than judicial, hearing rooms” (DuBow 2002:6). One commentator has argued that,

In one sense, the cigarette companies were being held up with a toy gun. In courts around the country, the legal theories on which Mississippi had based its Medicaid claim were being rejected. (Orey 1999:344)
It is possible that some of the SAGs had greater reason than others to hope for success in court. In a few states – Florida, Minnesota, and Massachusetts in particular – the probability of a verdict against the tobacco companies was estimated to be signiﬁcantly higher than in other states. In Florida, for example, the legislature encouraged the SAG suit by passing a statute that in effect abrogated the tobacco industry’s defenses. Still, these few exceptions cannot explain the ﬁling of suits by forty-two SAGs.

Because of the low probability of any but a few of the SAG suits succeed- ing at trial, it is difﬁcult to understand the suits without recognizing that the goal of the litigation was probably not to pursue the lawsuits individually in state courts in hopes of a favorable trial verdict, but rather to create a threat that was sufﬁciently strong and credible to bring Big Tobacco to the settle- ment table. This threat could be created only by getting a signiﬁcant number of SAGs to ﬁle suits. As Richard Scruggs noted in a Frontline interview:

[O]rdinarily in mass tort cases there is no way to, to try any individual case because the defendant has the advantage. He can beat you one at a time or, even if you beat them one at a time, you have not put them in mortal danger. When you raise the stakes through consolidations or bringing large numbers of claims together, you have. . . . You have given them an incentive to settle what would not otherwise be present. (Scruggs 1998)
An opponent of the suits, former U.S. Attorney General Richard Thornburgh also assumed this was the SAG strategy, saying that:

Even though there were ﬁlings in state courts and one in federal district court, the object was not to litigate. The object was to raise the threat level high enough to coerce tobacco companies into suing for peace. (Manhattan Insti- tute 1999:36)

These stakes would be raised enough only if a signiﬁcant number – a “critical mass” – of SAGs would join the effort. Thus, success against the tobacco companies would require collective action by the attorneys general.

Collective action by the SAGs could alter the calculations for the tobacco companies in several ways. First, a single victory for a SAG in one case could affect the likelihood of victories in later cases. As Richard Daynard wrote, “Until a case is won, most lawyers, public health advocates and journalists will likely stay on the sidelines. . . . Once a case is won, the general perception of the value of the strategy should change rapidly” (quoted in Mather 1998:908). Even if an early victory could increase the probability of victories in later cases only a small amount, the cumulative effect over a series of case could be quite dramatic.[2] It is signiﬁcant in this regard that several of the early cases were ﬁled in the states, mentioned above, where the probability of success was relatively higher. If these earlier cases were more likely to result in a victory for the SAGs, and if victories would improve the odds for later SAG suits, then the earlier suits could increase the likelihood that other SAGs would ﬁle suits themselves. While this is a plausible strategy, it does not seem likely to have been the basis of SAG cooperation because the rational decision for nearly all of the SAGs would be to hold back and wait to ﬁle a suit until one or more victories had actually been achieved in other states. However, no case had succeeded at trial before the other forty-one SAGs ﬁled suit.

It is more likely that the goal was to bring the tobacco companies to the settlement table by the mere threat of a large number of trials and appeals, regardless of the likely outcome. Trials drain the ﬁnancial resources of both plaintiffs and defendants. The tobacco companies had, of course, used this to their own advantage in previous cases against individual smokers, who often gave up appeals due to lack of resources. No doubt the industry had the resources to ﬁght Moore’s suit as well. But the prospect of ﬁfty state govern- ments ﬁling suit at once would alter the calculations of risks to the com- panies. In 1996 alone, the industry was estimated to have spent $600 million on legal fees, without having taken one case to trial (DuBow 1997). Besides the ﬁnancial costs of litigation, however, were the political and public relations costs as “Big Tobacco” was portrayed by the media in an increasingly hostile light. Finally, the uncertainty surrounding the litigation was depressing the price of tobacco stocks, so that Wall Street was putting substantial pressure on the companies to try to resolve the litigation.

The necessity of bringing more states into the litigation was recognized early on by Moore. As Moore explained it,

Basically, what I was trying to do was build an army the size the tobacco industry had. . . . If I just stayed here by myself and let the laser beam of the tobacco industry focus on Mississippi, I wouldn’t have stood much of a chance, I don’t think. (National Law Journal 1997:B-7)
He and Scruggs, a law school friend who had originally suggested the litiga- tion to Moore and who Moore had hired on a contingent fee basis, began a campaign to recruit other SAGs to ﬁle similar suits. Martha Derthick invokes their activities to explain the “gathering of momentum” in the number of SAGs joining the crusade from the summer of 1996 to the summer of 1997: “They ﬂew around the country in Scrugg’s Lear jet, touching down in state capitals to plead their cause” (Derthick 2002:79).

The SAG anti-tobacco litigation thus seems to be best understood not as forty-two SAGs independently trying to win at trial against the tobacco companies, but as an effort to bring enough resources to bear to force the companies to settle to avoid the cost and uncertainty of litigation. It was the explicit understanding of those that began the litigation that their best chances of success lay in marshalling the resources of a number of SAGs, and they took immediate steps to do so. In short, the tobacco suits should be under- stood as an example of litigation as collective action.

Another possible explanation is that the SAGs, who are elected ofﬁcials in forty-three states, derived political beneﬁts from ﬁling the suits, regardless of the likelihood that the suits, individually or collectively, would succeed. Olson used this kind of “selective beneﬁt,” which accrues to the contributor independently of the creation of the collective good, as the primary means by which interest groups overcome the free-rider problem. However, this too seems implausible as an explanation for the emergence of cooperation among the SAGS. The suits had enormous potential negative political con- sequences for the SAGs. The Washington Post noted that “[Mike] Moore’s lawsuit was initially characterized by journalists as ‘an act of supreme polit- ical courage, if not self-immolation’ ” (Mather 1998:921). Moore himself said that he “was convinced when I ﬁled it that it was going to be my last political act” (Mintz & Connoly 1998:A-1). A political backlash against the SAGs, with tobacco companies and conservatives funding campaigns against in- cumbent SAGs was not unlikely, and using public resources to ﬁle an unsuc- cessful long-shot suit against a major industry would seem to be an invitation to accusations of misuse of public funds, which would be a major liability in an election.

Apart from these potential costs, it is not at all clear that any political beneﬁts ﬂowed from the suits, independent of their success, especially for the early ﬁlers. It is difﬁcult to imagine much public support for the suits, at least until and unless they succeeded, among all but the most fervent antismokers in the public. A few SAGs in liberal states where anti-tobacco sentiment was especially strong might beneﬁt directly from position-taking on this issue – Minnesota’s Hubert H. Humphrey III and Massachusetts’ Scott Harshbarger, for example – but these would certainly be exceptional cases. As the discussion of group heterogeneity in the next section shows, however, these few exceptions may have been the key to the emergence of a critical mass of suits in the tobacco litigation.

To summarize, if we view the SAG suits individually, they are difﬁcult to understand because they were unlikely to succeed and were politically risky regardless of their outcome. Even Moore and Scruggs, the original ﬁlers, understood that if they were to prevail it would not be though individual lawsuits, but by bringing together a large enough group of SAGs that the collective weight of the suits – and their associated risks to the tobacco companies – would bring about a settlement. This effort, however, faced a collective action problem. The apparent best strategy for other SAGs was to refuse to expend resources and political capital at least until there was sufﬁcient momentum to make success likely and to ride free on the efforts of others. The following section develops a theoretical framework for understanding how this problem was overcome.

V. SOLVING THE SAGS’ COLLECTIVE ACTION PROBLEM

This earlier research on the tobacco litigation, which treats the SAG decisions as independent of one another and does not explore the role of collective action or interdependent decision making, does nonetheless help to establish the sources of heterogeneity among SAGs with regard to the value and costs of the suits. The clearest source of variation in the value of the suits was the amount of money that the suit was likely to recoup, which is a func- tion of Medicaid payments. Naturally, this money would not ﬂow directly to the SAG, but none would likely miss the potential political value of bringing a billion dollars or more into the state coffers. While an argument can be made that the best estimate of the value of the suit to the state would be dollars per capita, it seems more likely that the SAGs would be interested in the raw dollar value of the suit. Here, there was a remarkable degree of heterogeneity. In 1995, New York led the states with over $12 billion in Medicaid spending. Wyoming, which did not ﬁle a suit, came in last with just $63 million. The role of tobacco in the state economy would clearly affect the eco- nomic and political calculus of the suits, and SAGs from states with high tobacco production would face huge pressures to not ﬁle a suit. Indeed, as indicated above, SAGs from the largest tobacco producing states failed to ﬁle suits, though SAGs from some states with lower levels of tobacco production did ﬁle. Here too, there was a great deal of heterogeneity, with a few states highly dependent on tobacco and a large number with negligible production.

The political risks of the suits also depended on the conﬁgurations of party and public support confronting the SAGs in each state. Democratic SAGs were less likely than Republicans to lose the support of party leaders in the legislature and executive as a result of pursuing a tobacco Medicaid suit, since the tobacco industry’s campaign contributions have traditionally ﬂowed more freely to the GOP. Also, as Spill, Licari, and Ray point out, tradition- ally, “[D]emocrats are generally more willing to use the judiciary as a policymaking institution” (2001:608), so a suit ﬁled by a Democrat may seem less out of line with party ideology than one ﬁled by a Republican.

Another political factor to consider would be the amount of political cover, or political resistance, that the SAG could expect from other parts of govern- ment. Governor Kirk Fordice of Mississippi responded to Moore’s tobacco suit by suing Moore. Fordice’s suit claimed that Moore’s ofﬁce had no power to institute such a lawsuit, but the state courts rejected the governor’s claim. In contrast to the situation in Mississippi, Florida’s legislature passed a law in 1994 that altered state legal rules in ways that strongly favored the tobacco suits. Clearly, a SAG’s political calculations were likely to take such responses into account.

SAGs also had to consider public opinion. Lawsuits against the tobacco industry were thought likely to anger smokers, especially if they would result in increased tobacco prices. A critic of the tobacco litigation, writing near the time of the MSA, wrote that, “Of course, launching a jihad against cigarettes carries with it political risk. The AGs may alienate some smokers (approximately 20 percent of adult Americans smoke)” (DuBow 1997). Public opinion on smoking and tobacco had undergone signiﬁcant change over the years, though. By the time of the tobacco suits, the percentage of adult smokers in the U.S. had dropped, from a high in the 1950s of about 50 percent. Lynn Mather tracked public opinion and media coverage of the issue and found that “according to Roper poll data, 58% of those sampled in 1980 had an unfavorable opinion of the [tobacco] industry, moving up steadily to 75% of those polled in 1996” (1998:923 –24). Thus, while overall shifts in public opinion seemed to favor the SAG suits, individual SAGs would still likely consider its signiﬁcance in their own state. Where public opinion tended to be conservative or libertarian, the public would tend to respond to the tobacco industry’s arguments that the SAGs were creating another government- imposed tax; and that because the tax was imposed through litigation rather than legislation, the SAGs were engaging in “taxation without representa- tion.” Attorney General M. Jane Brady of Delaware made the connection between public opinion and her decision not to ﬁle a suit explicit: “. . . I decided not to join the tobacco litigation because of my own political calcula- tions. I was in the middle of reelection in November of 1998, and I took public sentiment [against a lawsuit] seriously” (Mahattan Institute 1999:38). Finally, in order for the threat of litigation to be credible, the SAGs needed to show that they had the resources necessary to follow through to trial if necessary. Thus, as previously noted, a part of Moore’s strategy was to attempt to equalize the resource imbalance by employing outside counsel. The law ﬁrm of Moore’s old college friend Richard “Dickie” Scruggs went to work for the state on a contingency-fee basis, and Moore was able to gain legal assistance with little initial outlay of resources. In a 1997 article proclaiming Moore the “Lawyer of the Year,” the National Law Journal said that:

This model, adopted with variations by the other states that would eventually join the crusade, avoided the danger that a hostile legislature might pull the ﬁnancial plug and allowed considerable pooling of resources among the states, most of which are represented by a small group of lawyers that includes Mr. Scruggs. . . . (National Law Journal 1997:B –7)
These contingent-fee arrangements not only reduced the costs of litigation but also relieved the SAGs of the need to ask a potentially hostile legislature for resources to carry the suits forward. In addition, the contingency lawyers worked for more than one state and cooperated with each other on strategy, further reducing their costs. Mather points to the ready availability of these contingent fee lawyers as a cause of the spread of the suits (Mather 1998).

The foregoing suggests that there was signiﬁcant heterogeneity among the SAGs with respect to the potential value and costs of the tobacco suits. Oliver and Marwell argue that, if the heterogeneity is signiﬁcant, there may be enough members of the group willing to contribute when the probability of success is low to begin a “snowballing” effect that will bring in other members whose thresholds are higher. Was there enough systematic vari- ation in the factors considered above to explain how a critical mass formed in the tobacco litigation? In the next section, I develop a model of the tobacco litigation that takes into account both the production function and group heterogeneity. The model is tested against the data to determine whether an approach based on collective action and interdependent decision-making provides a better description of the tobacco litigation than does an approach that treats the SAG suits as independent actions.

VII. SUMMARY OF FINDINGS AND CONCLUSIONS

The model of SAG litigation against the tobacco industry presented above leads to two major conclusions. The ﬁrst is that the coordination among the SAGs in ﬁling against tobacco companies was not the accidental result of independent decisions by the SAGs. Nor was cooperation the result of a prior agreement among the SAGs regarding how to proceed. Rather, coop- eration emerged from a process of interdependent decision-making, in which the SAGs inﬂuenced each other as each observed and reacted to the decisions of the rest. A few SAGs whose circumstances made their suits more likely to be successful, or whose personal predispositions made them willing to ﬁle suits that had little to no chance of succeeding, created the conditions under which a few more would ﬁle, and so on until the process “snowballed.” The end result was one of nearly complete cooperation, sufﬁcient to bring the tobacco industry to settlement talks.

The second conclusion is that this process was highly contingent on heterogeneity in the distribution of the characteristics of the SAGs and their political environments. Had these been different, the emergent cooperation may have been derailed and the critical mass of suits might not have been ﬁled. For instance, had fewer SAGs during this period been Democrats, it is possible that the level of participation that lead Republicans like Carla Stoval to join the litigation might not have been reached. Her failure to ﬁle may then have resulted in other SAGs also refraining and the process might have then stopped short at that point. As it was, a majority of Republican SAGs did ﬁle suits, but only because a sufﬁcient number of other SAGs did so before them. As another example of the importance of group heterogeneity, one can imagine that had the tobacco industry been more geographically dispersed, fewer SAGs might have been willing to attack a locally important industry.

The tobacco litigation, as it has turned out, was an early, dramatic step in what has become a continuing saga of SAG cooperation. Suits against CD producers, ﬁnancial and lending institutions, drug companies, and others have followed, and surely there are more to come. The model presented in this paper suggests one way of understanding how this litigation comes about and potentially one way of predicting the directions that SAG litigation will take in the future.

It can also suggest cases where cooperative action would not be likely to occur among the SAGs. A good example would be the suit ﬁled in January 2003 by ten states against the Environmental Protection Agency. The suit attempts to roll back Bush administration guidelines that loosen pollution restrictions on coal-ﬁred power plants that seek to expand their facilities. As of February 2003, the suit had been joined by the SAGs of New York, Connecticut, Massachusetts, Maine, Maryland, New Hampshire, New Jersey, Pennsylvania, Rhode Island, and Vermont. That these ten states are all in New England and the mid-Atlantic region reﬂects the fact that prevailing winds bring to these states the pollutants from the power plants located largely in Midwestern states like Illinois and Ohio. Although all states are obviously harmed by the poisonous emissions of the power plants, the dis- tribution of incentives and costs – which states contain the power plants and which states’ economies depend on coal mining for instance – means that the coalition of suing states is unlikely to grow signiﬁcantly. If this distribution were otherwise – if the power plants were further west or the prevailing winds blew westward, if the states most affected were those with Republican SAGS, etc. – the results could be different. To recognize this is perhaps simple political common sense, but the type of model presented here allows us to explore the ways in which the emergence of collective action in multistate litigation is, and is not, sensitive to the distribution of such factors.

Footnotes

1. Mississippi, Florida, Texas, and Minnesota had previously settled with the tobacco industry, for a total of $40 billion

2. This can be seen by imagining a set of 50 plaintiffs whose cases against a single defendant are brought serially. Given an initial probability of winning a case of .25, if each plaintiff victory increases the probability of subsequent victories by just 10%, on average plaintiffs will win in more than 30 of the 50 cases.

thomas a. schmeling is Assistant Professor of Political Science at Rhode Island College. He received his Ph.D. from the University of Wisconsin-Madison in 1999 and taught previously at Skidmore College, Dartmouth College, and Rutgers University. His current research focuses on state courts, the diffusion of legal innovations, and processes of legal change.

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Address correspondence to Thomas A Schmeling, Department of Political Science, Rhode Island College, 600 Mount Pleasant Avenue, Providence, RI 02908.
Telephone: (401) 456 -8722;
e-mail: TSchmeling@ric.edu.
LAW & POLICY, Vol. 25, No. 4, October 2003
ISSN 0265 – 8240
© Blackwell Publishing Ltd. 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK, and 350 Main Street, Malden, MA 02148, USA.

Stag Hunting with the State AG: Anti-Tobacco Litigation and the Emergence of Cooperation Among State Attorneys General*

Footnotes

Stag Hunting with the State AG:
Anti-Tobacco Litigation and the Emergence of
Cooperation Among State Attorneys General*