Up in Smoke: From Legislation to Litigation in Tobacco Politics

Rating:
Summary: Provoking Look at Public Policy and the Tobacco Industry
Review: "In "Up in Smoke," Martha A. Derthick, former professor of government at the University of Virginia and author or coauthor of several studies of the U.S. policy process, describes and analyzes the events leading to the historic 1998 tobacco settlement with the states. She concludes that these developments continue an unfortunate movement away from representative democratic negotiation toward a process of "adversarial legalism" that relegates democratic politics to the sidelines of public policy."

"For those readers sincerely interested in reducing smoking and its attendant health risks, "Up in Smoke" presents a decidedly mixed bag. Although smoking continues to decline among Americans, the states now have a large vested interest in seeing that the sale of cigarettes continues unabated. If such continuation occurs, they can count on substantial payments from the industry for at least the next two decades. Also, many states are now increasing dramatically their excise taxes on cigarettes. The revenue stream from this unhealthy habit has become important to state finances. Obviously, the states will be reluctant to ban smoking entirely."

"Thus, those aspiring to a smoke-free society are now considerably more limited in their alternatives for achieving their goal. Local governments may continue to enact highly restrictive legislation, and there is the slim possibility that national government litigation may result in heavier penalties on smoking. Lawsuits by private plaintiffs also remain a viable, though limited, option. The most serious problem posed by the MSA (master settlement agreement of 1997) for antismoking activists, however, is that it has created a powerful political constituency that reaps substantial rewards from the tobacco industry. There is little reason to believe that state legislatures will stand idly by and allow either their courts or their local governments to threaten their revenue."
-From "The Independent Review," Winter 2003

Rating:
Summary: Fascinating Image of American Politics
Review: Derthick's story of the tobacco wars is the real deal of American politics, not the civics you learned in high school. Unlike some writers, Derthick doesn't moralize about tobacco. Some looking for fevered preaching may be put off by her detachment and even skepticism about the anti-tobacco movement. Careful readers, however, will find all the creepy details about tobacco companies they have come to expect. Derthick is objective, and the tobacco executives are, objectively, creepy. The best part about this book, though, is that Derthick has a deep understanding about American politics, and the reader will take away sharp images of how policy is made--from trial lawyers to crusading agencies, from university faculty and health professionals to the muddle in Congress. It's all here, in one timely and highly readable book.

Rating:
Summary: Interesting To Say The Least
Review: I am a college student and was forced to read this book for one of my Political Science classes. I must give Ms. Derthick credit. She wrote a piece that was very informative and gave you an inside look at what politics is really about. It takes you from the careful court systems, to protective government agencies, to individuals begging for compensation. It was a thick read, very slow for most of my classmates to get through. I believe she was flawed in her view of litigation over legislation. She made it clear that we should pursue legislation over litigation, though when it came to legislation, it seemed like she had a "How dare they do that" attitude. All I have to say is that if you are a student that is required to read this book, hold on because you are in for a ride. I also hope you have a lot of free time because it will take you a little while to read and digest all the information this book has to offer.

Rating:
Summary: Don't buy this book
Review: This book may mislead some gullible readers, but it must anger anyone familiar with struggles against Big Tobacco.

I awarded two stars for Dr. Derthick's central idea. I could not award any more stars due to Dr. Derthick's flawed execution in writing this book.

Her central idea is that litigation does not work as well as legislation in designing policies and making decisions. Most readers, I believe, will grant the author that much. Lawsuits are designed for some evils of democracies but are not well designed to make policy or to regulate society.

A good book on the pitfalls of litigating even when legislatures, executives, and bureaucracies have largely failed would be a Godsend, I thought. I still think that. The trouble is, this is not a good book.

Some of the book is merely disappointing: arguments and assumptions too flimsy to be specious; half-clever tactics that will fool few who do not want to be fooled; and so on. However, what about wretched students whose teacher is so reckless as to assign the book? How many of them will see the fallacies? This, then, is a dangerous book when it is not merely disappointing.

Let me reveal just two tricks.

Trick #1: Ersatz Equilibration

Professor Derthick facilely "levels the playing field" by supplying -- usually at the end of a long paragraph of anti-smokers' complaints about Big Tobacco's stifling of reforms -- some allegedly compensating political advantage that the anti-smokers enjoyed. I could supply examples, but I shall spare ... busy patrons. This trick should not deceive a deft reader any more than noting that Burt Lancaster's soldiers downed a Japanese plane in "From Here to Eternity" made the U. S. less disadvantaged after Pearl Harbor. [If the author would protest that comparison, I would remind her that tobacco kills more Americans in a month than died at Pearl Harbor on 12-7-41.]

Still, I worry that beginning students or gullible citizens may not see that Derthick has downplayed all of the bogus research, mendacity, and propaganda that Big Tobacco has used to prevent legislative initiatives from succeeding.

If readers know that normal politics has been subverted by tobacco companies, they may welcome the courts as a way to save fellow citizens from cancer or at least to make tobacco companies devote some of their profits to helping those whom they have victimized.

Trick #2: Ideals and Reals

The good professor presumes that no one would deny that the Constitution favors legislation over litigation. I deny that. Indeed, I do not see how one could construe the separation of powers a la Montesquieu and the Constitution of 1787 -- and state constitutions -- other than to say, as Marshall claimed in Marbury v. Madison, that courts interpret and apply legislated policies to specific cases. The Constitution, I had long believed, assigned different sorts of policy-making to different spheres. Dr. Derthick's truism is false unless one circumscribes policy-making in a manner utterly at odds with political experience.

However, even if the Constitution conferred some priority on legislative policy-making, and even if we overlook the domination of at least some policy-making by executives and extra-legislative forces, anti-smokers would nonetheless have an argument that Congress had defaulted over the decades.

The author not only soft-peddles the legislative history of smoking but hypes the crusade-like mentality of the anti-tobacco forces. This lovely decontextualization makes anti-tobacco activists look truly fanatical unless the reader is independently aware of the perfidy and propaganda and profits that have characterized at least fifty years of Big Tobacco's purported or proven role as purveyor of cancer. [Of course, the author does note that smokers chose to smoke. Great point! And women who used Dalkon Shield chose to have it inserted! And alcoholics chose to take that first drink!]

If we compare Congress as an anticipated ideal with the real world politicking in Congress, we should not be surprised when the ideal bests the real. To steal from John Hart Ely: the good news is that the good doctor's trick "works;" the bad news is that everyone should see it as a cheap trick.

I believe that there are serious words to be written and said about the use of litigation to make policy but the author evidently decided not to write about or even to learn about the uses of litigation. I hope someone will write that serious work.