Okla. J&J ruling hits against institutional derangement

Institutional derangement is occurring almost everywhere. But not in Oklahoma.

Universities, rather than forming sturdy students exercising freedom of speech, encourage student brittleness by providing freedom from unwelcome speech. Churches, having saved sufficient souls, turn to saving society with the sort of social policies approved of by The New York Times, which, having perfected journalism, decided to “reframe” the teaching of U.S. history. The Federal Trade Commission’s chair decrees a “holistic” approach to antitrust enforcement that licenses the FTC to correct economic practices that it thinks impede the proper “distribution of power and opportunity across our economy.” Because the White House evidently was just kidding in July when it said mandating vaccines is “not the role of the federal government,” the Occupational Safety and Health

Administration, disregarding Supreme Court rulings about compulsory vaccinations lying within the states’ police powers, has ordered them.

Now, however, we can expect at least some courts to discourage relying on courts to pursue social justice by misapplying inapposite laws. Or by assuming responsibilities properly residing in state legislatures and their agencies.

A week after a similarly reasoned ruling by a California court, last week Oklahoma’s Supreme Court overturned a $465 million judgment — the state had sought $17 billion — against the pharmaceutical company Johnson & Johnson to abate opioid damages. J&J’s opioids were 3% of prescription opioids dispensed in Oklahoma. A lower court had imposed the $465 million penalty under the state’s public nuisance law.

Opioids, which are beneficial in treating pain, have been approved by the Food and Drug Administration and are legally obtainable only through prescriptions presented at government-licensed pharmacies. Nevertheless, about 2,000 cities and states are suing opioid manufacturers and distributors in cases consolidated in Ohio.

Timothy Sandefur is chief litigator for Phoenix’s Goldwater Institute, for which he filed an amicus brief opposing Oklahoma’s use of its public nuisance law against J&J. This concept, he argues, is unconstitutionally vague, there being legal consensus on what [‘public nuisance’] actually means.” So, these laws do not give due notice of what is proscribed. Furthermore, we know that they can be treated as infinitely elastic — a law without boundaries that is against any behavior deemed bad:

Against those who manufactured lead paint when this was legal. Against automobile manufacturers and oil companies for exacerbating climate change. Against gun manufacturers for violence. Against liquor manufacturers for physiological or psychological harms. Against fast-food restaurants for the public costs of obesity.

Oklahoma’s Supreme Court held, 5 to 1, that for good reasons the 1910 public nuisance statute had never been extended to the manufacturing, marketing and selling of products. The statute properly concerns conduct within the control of the person accused, conduct that harms the common rights (e.g., to unpolluted water) of the general public . ...

Stretching “public nuisance” laws far beyond their intended and traditional uses would be an incentive for the pursuit of vast social change without legitimation through legislative deliberation and bargaining. And it would entail more institutional derangement.

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