Walter Olson puts it well -- Attorney General activism

Our good friends at CEI sent over these excellent
pieces on "Attorney General activism"......Eliot
Spitzer, of course, being the worst of them all.


Paint by Lawyer
November 7, 2005; Page A2011/6/2005 -
Wall Street Journal, Print Edition
http://online.wsj.com/article/SB11313193239758
9558-search.html?KEYWORDS=Paint+by+Lawyer
&COLLECTION=wsjie/archive

If you happen to live in a house built before the
mid-1950s or maybe even 1978, you might be
surprised to learn that you could be the proud
owner of a public nuisance. At least that's the novel
legal argument being made by the Attorney General
of Rhode Island in a trial that began in Providence
last week. If the lawsuit succeeds in the nation's
smallest state, watch for it to be exported to the other 49.

The issue is lead paint -- the mere presence of which,
the state argues, constitutes a public nuisance. Until
1978, when the Consumer Product Safety Commission
banned it for residential purposes, lead paint was
widely used (though the industry had voluntarily
reduced the amount of lead in paint about 20 years
earlier). Half the homes in Rhode Island could be
contaminated, an attorney for the state said in his
opening statement.

If you smell a trial lawyer here, you're right. The
"nuisance" argument was sold to Rhode Island by
Motley Rice, the South Carolina law firm that won
hundreds of millions of dollars in contingency fees
for its litigation against tobacco companies. Fresh
from victory in the tobacco wars, the firm was looking
around for new deep pockets to target and lighted
on paint companies. Senior partner Ron Motley said
in 1999 that he intended to "bring the entire lead paint
industry to its knees."

Motley Rice marketed the idea to Rhode Island,
whose then-Attorney General, Sheldon Whitehouse,
brought the first-ever lawsuit against paint makers
and an industry trade group in 1999. This government
-plaintiffs lawyer axis argued that the paint
manufacturers knew they were creating a public
health threat and should be held responsible for
children who suffer from lead poisoning. The state
lost -- as did Mr. Whitehouse, who was running for
governor on the Democratic ticket. A mistrial was
declared in 2002 after a jury deadlocked 4-2 in favor
of the paint companies.

Now there's a new AG and a new trial. And Motley Rice
is still at it. Under its contingency-fee contract with the
state, the law firm stands to win 16 2/3% of any settlement.

No one questions that lead paint is a health hazard for
children if they ingest it. This usually occurs when paint
dust gets on their fingers and then into their mouths. State
law requires that owners keep their properties in a "lead-
safe" condition, which can be accomplished by painting over
the lead paint so that it does not peel or flake. Proper
maintenance is also the recommended policy of the Centers
for Disease Control, the Department of Housing and Urban
Development and the EPA.

Maintenance works, as can be seen by the dramatic drop
in the prevalence of lead poisoning in Rhode Island children
in the past decade -- to 5% in 2004 from 20.5% in 1995,
according to the state health department. A total of 1,685
children were poisoned last year. The incidence remains
disproportionately high in children from poor families, who
are more likely to live in homes where the paint is
deteriorating.

The state knows the addresses of the affected children.
A better way to protect them would be to pursue landlords
who don't maintain their properties, rather than hooking
up with contingency-fee lawyers to loot the paint industry
for products that it believed to be safe when they were
sold 30 years ago.

http://www.pointoflaw.com/archives/001783.php
Spitzer: no smokes via UPS
Posted by Walter Olson
There's no good reason why enterprises that carry
parcels should feel legally obliged to check, opening
the parcels if necessary, whether the sender and
recipient have paid all the taxes due on their
transaction. That's one reason why, if you order
cigarettes by phone or online from an Indian tribal
supplier, the U.S. Postal Service will be happy to
deliver the cartons to your door. (Another reason:
it remains a matter of legal dispute whether states
can tax the tribes' sales in the first place.)
Nonetheless, New York Attorney General Eliot
Spitzer has just bullied UPS, the world's largest
package carrier, into agreeing to cease the delivery
of cigarettes to individuals nationwide. (N.B. --
not just in New York, but anywhere in the country
-- including the 49 states whose citizens never got a
chance to vote on Spitzer's elevation to his post).
For now, at least, Spitzer can't reach the U.S. Postal
Service itself with his legal threats, so that avenue of
distribution remains open. Nannyism is probably
only a secondary motive for Spitzer in this case; he
has long taken a forward role in enforcing the tobacco
cartel, organized in 1998 with the assistance of state
attorneys general, against attempts by independent
makers and sellers of cigarettes to undercut the cartel
and thus interfere with the states' lucrative flow of tax
and settlement money. And it's hard to see why the
principles at stake, once established, will not be carried
further. For example, states would love to tax interstate
sales of goods on eBay, many of which are shipped by
UPS. What happens when a Spitzer successor demands
that UPS cease to deliver shipments of goods bought
on eBay unless the sender proffers evidence that sales
tax has been paid? Will the delivery service fold up
and go quietly then, too?