Oklahoma Supreme Court strikes a blow 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 “no 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 fastfood 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. Applying the nuisance statute to lawful products “would create unlimited and unprincipled liability for product manufacturers,” who generally do not have control of their products once they are sold. J&J could not control how wholesalers distributed its products, how doctors prescribed them, how pharmacies dispersed them or how patients used them. Furthermore, Oklahoma’s Supreme Court refused to allow the lower court to aggrandize itself by apportioning, like a legislature, the $465 million to particular uses.

The litigation against cigarettes — legal products that are addictive and otherwise harmful when used as they are intended to be — is a cautionary story. It produced a 25-year, $246 billion settlement in 1998 entitling states to a revenue stream from future tobacco company profits. The states became addicted to this money, and although they allocated some money for smoking-prevention programs, they had an incentive not to discourage smoking so much that they jeopardized the revenue from the companies, or from per-pack state taxes.

The opioid calamity — opioids have contributed to more than 500,000 deaths in the previous quarter-century — has provoked exemplary journalism (e.g., “Dreamland: The True Tale of America’s Opiate Epidemic”) and gripping dramas (e.g., the miniseries “Dopesick,” a scalding depiction of Purdue Pharma, maker of Oxycontin, and of the federal government’s regulatory regime). Disliking pharmaceutical companies is America’s national pastime, except when the companies are devising anti-pandemic vaccines at warp speed. But some companies certainly have behaved despicably regarding opioids, and if they committed fraud, or malpractice, or false advertising, or marketed defective products, they should be sued under laws against those specific behaviors.

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.