If a manufacturer continues to use a toxic ingredient in its product long after it knows that the ingredient can maim and kill people, who should bear the cost of fixing the public health hazard that results? The people who bought the product thinking it safe? The public at large? Or the manufacturer?
Over at the NYT today, a columnist’s heart bleeds over this subject, but not with blood. Or with sympathy for the victims. Nope. His ticker bleeds . . . lead. Specifically, it bleeds with outrage that lead-lacing paint makers face lawsuits accusing them of creating a public nuisance.
Blawgletter doesn’t understand from the column whether its writer denies that the persistence of lead paint poses a serious threat to public health and safety, especially in poorer neighborhoods. It indisputably does. But he does call calling the problem a "nuisance" a "wacky idea".
What makes it wacky? As far as we can tell, the goofiness consists in two things: (1) the possibility that the nuisance theory of liability may overcome difficulties in proving that lead paint in a specific home came from a particular manufacturer and (2) the chance that manufacturers may have to pay for selling a "perfectly legal" product.
But the title of the column — "The Pursuit of Justice, or Money?" — tells us what really bothers the author. We suppose that he excludes the possibility that lawyers can do both at once. "[F]or every Enron," he declaims, "there are cases where lawyers abuse the legal system. In these cases, litigation can look more like an income-redistribution racket than a search for justice." In his view, civil nuisance lawsuits against lead paint manufacturers offers "a new example of litigation run amok."
We see the issues differently. The lead paint lawyers, working with state governments, aim to fix a real problem. They’ve concluded that the people who created the danger should pay for remedying it. To the columnist, that may look like "an income-redistribution racket" and not "a search for justice". But to normal people, we imagine, making wrongdoers pay seems the very essence of civil justice.