Nino C. Monea is a Law clerk, Michigan Supreme Court. B.S., Eastern Michigan University; J.D. Harvard Law School. Views expressed in this Article are my own. Many thanks to James Tatum, Paul Kominers, Kerry Richards, Brian Walsh, Neil Makhija, and Steven Wilfong for their insightful comments.
The opioid crisis has been called the worst drug epidemic in American history. It has already killed thousands and scarred millions more. Over the last few years, there has been a rise in affirmative litigation by municipalities — that is, proactive suits that seek to vindicate some public interest, not merely the municipality’s corporate interests. This article examines the recent wave of lawsuits by cities and counties against the opioid industry.
Municipalities face unique challenges in bringing suits. Relative to individual opioid users, municipalities face a complex task when attempting to prove injury and causation for their harms. And unlike states or nations, municipalities lack inherit authority to bring suits on behalf of their residents.
The Article first explains the basics of municipal affirmative litigation, including its history, major cases, criticisms, and benefits. It then describes the origins of the opioid crisis and the pharma industry’s complicity in exacerbating it. Next, it examines some of the major obstacles to municipal suits: standing, statutes of limitations, and preemption. Lastly, it describes the five theories most commonly employed in municipal affirmative litigation: (1) public nuisance, (2) Racketeer Influenced and Corrupt Organizations Act (RICO), (3) negligence, (4) state consumer protection laws, and (5) unjust enrichment. For each theory, it considers potential drawbacks to employing the theory, analogies that may predict its viability, and past opioid cases where it has been tested.
Cities have “long been recognized as a principal motivating factor in human progress.”1 The importance of localities in American history, too, cannot be denied. Until relatively recently, state legislators represented towns and counties, not districts.2 These legislators, in turn, picked the members of the Electoral College who would select the president.3 And when the states assembled conventions to debate and ratify the federal Constitution, many delegates were sent on behalf of municipalities.4 To this day, municipalities remain the reporting unit for the Decennial Census.5
Municipalities can also boast supreme longevity. In the beginning, people were hunters, and hunters were nomads. The advent of agriculture in 8,000 B.C. or so allowed people to settle down, conglomerate, and specialize.6 Villages and towns followed.7 By the dawn of the third millennium B.C., the first megacity, Uruk (in modern day Iraq), had been established with a population of between thirty and fifty thousand.8 Nations developed at a glacial pace in comparison. When America burst onto the world stage in 1776, only about two dozen recognized, independent countries existed.9 One hundred sixty years later, the League of Nations only had sixty-three member states.10
If Congress is full of show horses, local governments are the workhorses of the nation. They must tackle issues that national leaders can afford to punt on.11 “Municipal government is literally where the rubber meets the road.”12 Potholes and trash collection touch people’s personal lives in a way that most federal policies do not.
In many ways, localities are ideally suited to solve problems. Proximity helps. Unlike state and federal legislatures where legislators only assemble on occasion and then disperse, local leaders are all in the same place. A wealth of research shows that face-to-face interaction improves cooperation, trust, generosity, and productivity.13
Size, or lack thereof, helps too. In Los Angeles, a city with a population of four million — higher than about half of the states — only eight votes are needed to form a majority on the city council.14 And, as Montesquieu recognized, “inhabitants of a particular town are much better acquainted with its wants and interests than with those of other places; and are better judges of the capacity of their neighbours than of that of the rest of their countrymen.”15
In spite of this, cities have often been cast in a supporting role. They lack “natural” or “inherent” powers to take actions beyond what state governments bequeath them.16 Courts and the federal government have further circumscribed their power.17 Even certain international agreements may tie cities’ hands.18 In one important area, however, the power of local governments has grown with time: affirmative lawsuits.
Traditionally, municipal law departments have served two basic functions: providing legal advice to city officials, and defending the city in lawsuits.19 For decades, progressive city attorneys have tried to shift the perception that municipal work has to be defensive.20 In recent years, more and more cities have begun to use affirmative lawsuits as a means of playing offense. Affirmative lawsuits are actions that vindicate a public interest, often a mission that affects more than the city’s corporate interests alone.
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