Unprincipled Legislation

Faced with this setback, several states then enacted special statutes stripping the tobacco companies of their traditional defenses in the pending suits and allowing the states to establish causation and damages in novel and unfair ways.

The states did not change the law for all future plaintiffs and defendants or for all types of suits. Instead, first Florida and then Maryland and Vermont passed legislation that essentially provided that, in recoupment-type litigation in which the state was the plaintiff, the defendants were denied such venerable defenses as the assumption of risk, the requirement of proof of individual damages, and the normal statute of limitations "to the extent necessary to ensure full recovery by Medicaid."¹⁰ The statutes also eliminated the requirement that the state identify those allegedly injured by the tobacco companies; allowed causation and damages to be shown by use of statistical analysis without proving an actual link between tobacco use and the injury in particular individuals; and permitted the state to proceed under a market share theory, which allowed the state to treat all cigarettes (regardless of the tar and nicotine level) as exactly equal in health risk.¹¹

A good analogy is to imagine a statute that allowed the state to bring suit against car manufacturers for all automobile wrecks that previously occurred in the state. Under the hypothetical statute, the state would not have to reveal the names of the individuals injured or the circumstances of each crash. The state simply could supply a total loss figure for automobile-related injuries and provide expert testimony on how much the manufacturers should pay. Under the hypothetical statute, the manufacturers could not argue that the accidents were caused by driver negligence. The manufacturers could not show that some of the wrecks occurred decades ago and that the normal statute of limitations had expired long ago on such claims. Nor could the manufacturers argue that they had already paid for many of the claims through a special tax or that the state never suffered a loss. When the state inevitably won the rigged suit, each manufacturer then would be forced to pay an amount of the award proportional to its market share, without regard to whether the cars it manufactured were Volvos or Pintos. Essentially, this is what Florida, Maryland, and Vermont purported to do to cigarette manufacturers, except that a few well-connected attorneys were also beneficiaries of the corrupt statute.

Heightened Potential for Abuse.
Robert Levy, who is a senior fellow in constitutional studies at the Cato Institute, explained that there is a "quantum difference between altering the common law [that applies to everyone] and eviscerating a [particular] company's ability to dispute the charges brought against it."¹² And as nationally syndicated columnist Doug Bandow wrote in a scholarly monograph for the American Legislative Exchange Council, "The potential for abuse is most evident when the state is a party and [it] eliminates a particular defense or defenses only when the state [benefits]."¹³

This particular abuse (rigging the rules to enrich the state) was most apparent in Maryland's acrimonious legislative debate to revive its floundering lawsuit by special legislation. Lawyer-lobbyist Peter Angelos, who stood to gain hundreds of millions of dollars with his own sweetheart contingency deal, helped push the bill through the legislature.¹⁴ Maryland Governor Parris Glendening was surprisingly frank in describing what was going on when he said, "Give me three more Peter Angeloses, and we don't have to worry about the budget."¹⁵ In the end, Florida, Maryland, and Vermont left very little to chance. They passed laws that "almost automatically [held] cigarette makers liable for Medicaid costs."¹⁶

The state statutes raised serious constitutional questions involving the separation of powers, due process, equal protection, takings, bill of attainder, and ex post facto concerns. Nevertheless, the Florida Supreme Court modified some aspects of the Florida law and narrowly upheld the rest as "a rational response to a public need."¹⁷ This led other states to consider how easy it would be to win if their legislatures enacted a similarly unprincipled statute. As a result, several states were considering such legislation at the time of the global settlement.

All About Money.
Faced with the collusive and unjust nature of the new state suits (as well as a poisoned political atmosphere), the defendants agreed to a staggering settlement involving the payment of roughly $246 billion to the states and tens of billions more to the private contingency-fee lawyers.¹⁸ Of necessity, this money will be extracted for decades to come--mostly from low-income smokers--in higher cigarette prices.

Those who negotiated the settlement were sensitive to the fact that, even though the demand for cigarettes is fairly inelastic, there are some limits to how much some smokers will pay for cigarettes. Most industry analysts believed that the unprecedented settlement amount reflected the most the states thought they could get without bankrupting the industry and killing the goose that would lay the golden eggs.¹⁹

One aspect of the settlement, in particular, helps show that the state suits were not about any real wrongdoing, but about extracting money with no basis in legal liability. The states implicitly agreed to require new entrants into the tobacco market to charge the same high prices as the settling defendants, and to make payments to the states similar to those that would be required of the settling defendants. The settlement agreement provides that if the states did not do this, the payments would be reduced in relation to the defendants' combined loss of market share.²⁰

This provision violates basic antitrust principles (unless the "payment" is really a tax), hurts consumers, hurts new entrants, and has no relationship to alleged wrongdoing. But it is understandable that the settling defendants would try to protect their shareholders' interests in the coordinated litigation shakedown: If the suit was not really about wrongdoing and the "payments" were just a tax by a different name, then new entrants should pay the same tax. The states seemed to agree.

Thus, the state officials sold out their consumers (and their states' legislative sovereignty) for a pot of gold. That many legislators were happy to avoid the political costs of raising tobacco taxes explicitly and gladly abdicated their legislative powers to legal thugs made matters worse, not better.

Legal Principles Assailed in the Tobacco Litigation

From the brief summary provided above, it should be evident that the state recoupment litigation represented a serious assault on the rule of law itself. The rule of law encompasses many important ideals. One of its most important components is the principle that the protections of the law must not be waived in order to reach what is deemed by the government to be a "just" result. The protection of the law must be applied in the same way to everyone, whether the parties to a lawsuit are powerful, popular, or decidedly unpopular. This concept is expressed by a phrase that was once taught to all schoolchildren in America: Ours is "a nation of laws and not of men."

A related corollary of the rule of law is that like cases are to be handled and resolved in the same manner. Clever lawyers can always find some distinction in the facts of a supposedly new case, but if the relevant facts are the same, then the case should be handled and resolved no differently than every other case of its type. This means that novel legal theories are not justified by the supposed noble purpose of a lawsuit.

The state lawsuits and the contemplated federal lawsuit against the tobacco industry to reimburse the government for smoking-related Medicaid and Medicare payments conflict with these ideals. Among the many doctrines of law that normally would apply to the recovery of damages, the federal lawsuit against the tobacco industry likely would attempt to displace the venerable doctrines of (1) assumption of risk, (2) proximate cause, and (3) proof of individual damages.

Assumption of Risk.
The assumption of risk doctrine prevents someone who voluntarily accepts a known risk from recovering damages when the foreseeable risk materializes. For example, a professional boxer should not be able to sue his opponent if he gets a broken nose in a fair fight.

One does not need to know the precise probabilities of injury to legally assume the risk involved. All that is necessary is that the general nature of the risk be known. In the boxing example, a boxer need not know the precise probability of receiving various types of injury in each fight before he can assume the risk of injury. This is true even if the injury he ultimately sustains is an extremely rare one, as long as it is consistent with a fair fight. With regard to the risks of smoking, "not only is there substantial awareness of the smoking hazards," but people actually "appear to overestimate the risks as compared with the levels in the scientific evidence."²¹

The assumption of risk principle is a valuable rule for reasons other than that it comports with our sense of morality and justice. It is especially valuable in a free society in which different people are willing to accept different levels of risk. Without the assumption of risk rule, society would be forced either to (1) provide an implicit subsidy and encouragement for some peoples' risky behavior or (2) reduce the number of choices in the exercise of free will. Neither option is very attractive to people who cherish freedom.

Proximate Cause/Remoteness Doctrine. The doctrine of proximate cause is designed to hold those who are directly responsible for damages liable and to prevent them from shifting the blame to those who are not directly or "proximately" at fault. For example, if someone leaves his keys in his car and a thief steals the car and hits someone in a high-speed chase, the thief is liable for the injury. The car owner may have been a "but for" cause of the theft (but for his negligence, the particular theft might not have taken place), but the owner was not a direct or proximate cause of the accident.

The problem with "but for" causation is that it is limited only by a lawyer's imagination. The city that laid out the streets would be a "but for" cause in the example above, as would the injured person's parents and a thousand other people. As a consequence, the law must and does establish the cutoff point for liability.

There may be more than one person responsible if there is more than one direct cause, but those who are a remote "but for" cause are not liable. This is why the proximate cause principle is also referred to as the "remoteness doctrine." One important test of "proximate causation" is whether there was a "superseding or intervening cause" that broke the normal chain of causation. If there was a superseding or intervening cause of an injury, a remote "but for" actor is released from liability for the resulting injury. In the car chase example above, the criminal acts (car theft, high-speed driving, resisting arrest) are superseding/intervening causes of the wreck; they break the chain of causation and release the car owner of responsibility. Though the owner was negligent in leaving his keys in his car, his negligence was not a proximate cause of the wreck.

Proof of Individual Damages. Every plaintiff normally bears the burden to prove his individual damages that were proximately caused by each defendant. Smoking may cause or contribute to various diseases, but it is not the only cause or even the leading cause of many such illnesses.

Consider, for example, the effect of smoking on heart disease, which many advocates claim is responsible for over 100,000 deaths per year.²² A person's genetic makeup, lack of exercise, eating fatty foods, not eating other healthful foods, general obesity, not drinking moderate amounts of alcohol and black tea²³ are all causes or contributors to heart disease. Although medical researchers have some idea of the relative impact of various risk factors, there is still a large degree of disagreement and uncertainty. At worst, however, smoking is unlikely to be the top risk factor for heart disease. Nevertheless, the federal government has attributed a certain number of heart disease deaths to smoking for research purposes.²⁴

But what is necessary to advance scientific understanding is not what is necessary to prove a case in a court of law. What is necessary in a court of law is for each plaintiff to prove what damages were proximately caused by each defendant by a preponderance of the evidence. And during the course of discovery and trial, each defendant is entitled to examine the plaintiff's medical records and question the plaintiff to determine whether other causes of illness might be more likely in his case.

Application of These Doctrines.
As was the case in the state suits, lawyers bringing a federal lawsuit against the tobacco industry would likely try to eliminate the doctrines of assumption of risk, proximate cause, and proof of individual damages by making absurd and contradictory arguments. Several states argued that the assumption of risk doctrine did not apply to their claims because the government never assumed any risk, even if the smokers did. The states also argued that cigarette manufacturers were the proximate cause of such illnesses as heart disease in a certain number of smokers, but the states tried to prevent the defendants from investigating medical records to see what other causes might exist for each smoker. Such tactics create many serious problems.

An insurance company that pays a customer's claims (say, for medical treatment) and then sues someone else for reimbursement must stand in the shoes of its customer. The insurance company is allowed to sue because its customer sold his potential legal claims as part of the insurance agreement. An important principle in this type of suit, which is called a "subrogation" suit, is that the insurance company can buy no greater rights to sue than its customer had to sell. Thus, the insurance company can only bring a lawsuit that its customer could have brought, and the defendant can raise any defenses against the insurance company's claim (including that the customer assumed the risk) that it could raise if the customer had filed the suit.

The government is the health care insurer for Medicare enrollees and should be treated no differently than a private insurer. This was the early ruling of most state courts before the states began to pass special legislation. Although the federal government may try to invent a new cause of action and assert that it is not a "subrogation" claim (to avoid pesky legal doctrines), the gravamen (or essential nature) of the new cause of action would still be the same as a subrogation claim. The same rules should apply to it--no matter what the federal government's esoteric theory might be called.²⁵ As Doug Bandow put it, "sophistry cannot hide the essential nature of the state's action--to seek reimbursement for medical expenses that those being treated are legally barred from collecting. The state does not have a higher claim of action than the individual allegedly harmed."²⁶

Even if the assumption of risk doctrine is held not to apply directly in an Orwellian federal suit, it still might bar the federal claim indirectly--through the doctrine of proximate causation. If smokers knew of the risks and continued smoking anyway, then the smokers, not tobacco manufacturers, are the proximate cause of tobacco-related illness. The smoker's risky behavior is the superseding cause of his own illness and cuts off the remote chain of causation. If there is another direct cause of the supposed "loss" to government programs, it is the government's choice to cover smoking-related illnesses (assuming they are as easily identified as the government maintains). The government could have refused to provide coverage for smoking-related illnesses under Medicare, as it has done for veterans' benefits, or it could have charged higher premiums for smokers. Thus, either the smoker is the sole superseding cause of the alleged loss to the government programs or the government is also complicit in the alleged financial loss to its own programs.

There are also some inherent contradictions in any attempt by the government to simultaneously evade the assumption of risk doctrine and the necessity of proving individual damages. There actually might be a few smokers who did not know of the basic risks involved in smoking, but it hardly seems fair to allow the government to raise such an individualized argument if the defendants are not allowed to examine individual smokers to determine the different causes of injury. Instead, the government may have to argue that (1) smokers could not assume the risk because the risks generally are unknown but (2) the risks are so well-known that aggregate damages can be calculated without individual proof of damages.

DOJ's Original Position: "No Cause of Action"

Two years ago, career officials at the Department of Justice determined that the federal government had no independent cause of action for such claims. On April 30, 1997, Attorney General Janet Reno adopted their conclusion and testified before the Senate Judiciary Committee that "what we have determined was that [any such claim] was the state's cause of action and that we needed to work with the states, that the federal government does not have an independent cause of action [to recover Medicaid or Medicare funds]."²⁷

That year, the DOJ spokesman, Joe Krovisky, also said that the "Medicare and Medicaid statutes do not provide explicit authority for the federal government to pursue suit."²⁸

State officials and their attorneys also testified before Congress that the DOJ had informed them that the federal government could not join their suits or file its own suit because it did not have a cause of action against the tobacco companies for medical care reimbursement. Mississippi Attorney General Mike Moore, who was instrumental in getting other states to file suit, testified about his own and others' efforts to try to get the DOJ to join as well:

We...wrote letters, had personal meetings, and urged the Federal Government through the Justice Department and others to file a lawsuit on behalf of Medicare.... We were informed that the Justice Department and others did not feel that they had a cause of action under the Federal statutory framework, so they could not file such a lawsuit.²⁹

Richard Scruggs, a leading trial attorney who worked with several states on their lawsuits against the tobacco companies, testified that he strenuously urged the federal government to join their efforts but the DOJ determined that such an action would be illegal. In his words:

[W]e made every effort in the world to get the Justice Department to initiate litigation similar to the litigation that we had initiated to recover Medicare funds that were related to smoking, and we couldn't get anywhere with them. They interpreted that law...the black letter law as saying that they could not seek to recover except for servicemen or federal employees, but not those on Medicare. So we made an effort to get them involved, and they basically refused us.³⁰

It is highly unlikely that the DOJ's initial determination was made casually. The issue was one of the most hotly debated legal issues of 1997 and 1998; the state suits involved hundreds of billions of dollars; and it was a topic that the U.S. Attorney General would almost certainly be asked to address herself--and she was. Career DOJ attorneys are among the best and brightest legal scholars in government. It is simply inconceivable that their initial determination was the product of carelessness or a lack of attention.

Thus, throughout 1997 and 1998, the Department's position, communicated through DOJ officials directly and through third parties, was that there was no independent cause of action for the federal government to sue tobacco companies for medical cost reimbursements. Although these officials sometimes added--when they were questioned by pro-litigation Members of Congress--that they would continue to review the law, this is a typical (and arguably polite) hedge phrase political appointees mouth when they are questioned by a Member of Congress with an opposing view. There was still no public deviation from the DOJ's basic legal position until after the President told the Department that it should reverse course.

The DOJ's Original Determination Was Correct

The Department's original determination has the special virtue of being correct. In United States v. Standard Oil Co. of California, the U.S. Supreme Court categorically rejected the federal government's attempt to bring suit to recover medical costs when such a suit was not expressly allowed by statute.³¹ The Supreme Court rejected the invitation to create or expand the scope of federal tort law beyond that set forth in federal statutes, explaining the difference between state courts of general jurisdiction that were permitted to develop theories of tort law and federal courts which were not.³²

The Supreme Court also noted another problem with the government's theory, which it said is not really about tort law at all:

[T]he issue comes down in final consequences to a question of federal fiscal policy...the federal fiscal and regulatory policies which the Government's executive arm thinks should prevail in a situation not covered by traditionally established liabilities. Whatever the merits of the policy, its conversion into law is a proper subject for congressional action, not for any creative power of ours. Congress, not this Court or the other federal courts, is the custodian of the national purse.³³

The Supreme Court noted that Congress does create new federal causes of action for reimbursement when it deems it necessary: "When Congress has thought it necessary to take steps to prevent interference with federal funds, property or relations, it has taken positive action to that end."³⁴ The Court also pointed out that Congress is in the best position to weigh the competing issues of settled expectations and unfair surprise, and can fine-tune any new cause of action, for example, by making it apply only prospectively.³⁵

Finally, the Court reasoned that it was particularly inappropriate for the judiciary to create or recognize a cause of action when the United States was the party seeking that result:

Here the United States is the party plaintiff to the suit. And the United States has the power at any time to create the liability. The only question is which organ of the Government is to make the determination that liability exists. That decision...is in this instance for the Congress, not for the courts. Until it acts to establish the liability, this Court and others should withhold creative touch.³⁶

The Standard Oil decision is still good law, and there is no statute that allows the federal government to bring suit to recover medical costs of this type.

The two statutes most likely to be invoked in any federal lawsuit against the tobacco industry are the Medical Care Recovery Act (MCRA) and the Medicare Secondary Payer Act (MSPA), but neither provides a valid basis for the type of broad suit contemplated by the Administration. In its 37-year history, the MCRA has never been used to seek reimbursement of Medicare costs from anyone.³⁷ A careful reading of its terms and history reveals (including to the original career DOJ staff) that it applies to medical services provided to U.S. military personnel and perhaps to other federal employees, but not to all Medicare enrollees.³⁸

If the MCRA provided a cause of action under Medicare for aggregate losses, Congress would not have passed the MSPA in 1980 and amended it several times since then. The MSPA allows the federal government to recover certain limited costs paid by Medicare. It allows the federal government to sue or intervene in an action against an insurance plan, certain other "secondary" providers, and medical providers and beneficiaries, but not an alleged wrongdoer.³⁹ There is not one single reported case in which the federal government tried to use the MCRA or MSPA to recover Medicare costs against an alleged wrongdoer.⁴⁰

Other statutes that have been mentioned, including the antitrust laws and the Racketeer Influenced Corrupt Organizations Act, are even more baseless as possible grounds for suit. None of these statutes supplies the Administration with a valid cause of action (except perhaps for costs incurred for military personnel under the MCRA).⁴¹ As The Wall Street Journal recently reported, each of these four statutes mentioned as a possible basis for suit "would require leaps of logic and backdoor strategies that offend the legal sensibilities of some career Justice Department lawyers."⁴² This is because the Supreme Court held in Standard Oil that when Congress has created limited causes of action to recover medical costs in some contexts, that presents the strongest case against the courts creating other broad causes of action by judicial fiat.⁴³

The Only Change Is Political, Not Legal

There has been no change in federal law since the DOJ determined that it could not bring suit against the tobacco industry (except to reinforce that position), but there has been a sea change in attitudes affecting tobacco suits generally. From 1954 until recently, more than 1,000 lawsuits were brought against tobacco manufacturers without a single plaintiff's victory.⁴⁴ That record is not because tobacco products have no adverse effect on smokers' health (they do). In some cases, juries may have doubted that the plaintiff's particular illness was caused by smoking, but in the overwhelming number of cases, juries concluded that smokers knew of the health risk and voluntarily assumed the risk.

One marked change in recent years is that demagoguery against the tobacco industry by public officials has grown increasingly common, including blaming the industry for costs which the officials know do not exist. This focused vitriol against the tobacco industry increases the risk that jurors will disregard the normal legal rules in a case brought against a cigarette manufacturer. This demagoguery not only undermines the operation of the law and important legal principles, but also undermines the importance of individual responsibility.

There also has been a change in the perceived willingness of the tobacco industry to pay huge sums in response to a rhetorical and unprincipled suit. With the master settlement, the tobacco companies thought they had made a good deal for themselves, but by paying off the extortionists, they inflicted an injury on the operation of the law and funded an unprincipled segment of the trial bar to go after other targets.

In this way, the tobacco companies are partly to blame for what has transpired. Although the tobacco companies are more likely to fight the federal government's clear lack of legal authority to bring suit, they still have to contend with the raised expectations of a greedy government and a public that is even more confused about the distinction between politics and law.⁴⁵

Tobacco Industry "Wrongdoing": A Red Herring. The recent evidence of tobacco company culpability by itself should not have had that much of an impact on public opinion and no impact on the law. It is argued that industry documents released in the past few years show that, while tobacco companies denied that tobacco is addictive and downplayed the risks of smoking, this was contrary to some of their own evidence.⁴⁶

The physiology of addiction is complex and lends support to some medical arguments about the nature of chemical addiction and its individual variability. But as a matter of public relations, it was unwise for tobacco companies to advance an argument that runs counter to the lay use of the term "addiction" and the common experience of millions of smokers.⁴⁷ Although tobacco companies have a corporate responsibility to respond to exaggerated claims about the dangers of smoking,⁴⁸ it also would be wrong for them to try to downplay the health risks of smoking. Even assuming such wrongful behavior, however, it adversely affected no one's opinion.

People have known for centuries that smoking tobacco was an "addictive" habit, and cigarettes were known to cause death and serious illness for many decades before the first Surgeon General's warnings appeared on cigarettes 33 years ago. For example:

• President John Quincy Adams said that he was "addicted to tobacco" (both smoking and chewing) for much of his youth, but on the advice of a physician friend, he quit in the 1810s. Writing in 1845, Adams said that he thought smoking reduced life expectancy by five years on average,⁴⁹ which was probably an exaggeration for that time period when most people lived shorter lives.

• President Ulysses S. Grant's physician attributed his death by cancer to smoking.⁵⁰

• In 1892, The New York Times reported on efforts to have tobacco banned by Congress due to its serious health consequences and adverse affect on children.⁵¹

• In 1900, a U.S. Supreme Court opinion noted how common the belief was that cigarettes were harmful, particularly for young people, "and that communications are constantly finding their way into the public press denouncing their uses as fraught with great danger."⁵²

Even more relevant to the recent arguments advanced by anti-tobacco advocates, there have been thousands of non-industry and government studies worldwide on the addictiveness and health consequences of smoking. According to the director of the Office of Smoking and Health at the Centers for Disease Control and Prevention in Atlanta, "Cigarette smoking and other tobacco use is the single most studied health risk factor in the history of medicine."⁵³ Medical studies dating from the 1930s have confirmed peoples' common beliefs about smoking and are consistent with more modern studies on the basic effects of cigarettes.⁵⁴ As for the availability of this information, the Library of Congress maintains a special collection with tens of thousands of books, journals, studies, and reels of microfilm dedicated to the health effects of tobacco.⁵⁵ Most other libraries have similar collections.

In short, people know there are serious risks involved in smoking, but as with many other activities in life that impose some risk, they choose to do it anyway. This is the meaning of freedom, which includes the right to take risks that others may think are foolish and the corresponding duty to bear full responsibility for the results.⁵⁶

Moreover, if people tend to overestimate the risks associated with smoking--and there is strong evidence that they do⁵⁷ --then it simply is not material (in tort litigation) whether tobacco executives tried to downplay or conceal those risks. Dishonesty and fraud is serious business. It should justifiably enrage policymakers (if it is shown) and, if uttered under oath, should be prosecuted as perjury. But as Doug Bandow notes, it is not grounds to torture the law or engage in organized looting.⁵⁸

The same is true for the allegation that industry executives lied to policymakers about the documents they possessed and improperly urged their attorneys to claim the information was legally privileged. Discovery abuse is bad and should be appropriately punished if proven, but it is difficult to argue that any essential "truth" about smoking was concealed from policymakers or the public or that they would have done anything differently if they had known this additional information. In short, the alleged misstatements and omissions did not adversely affect the opinion or actions of anyone.

The tobacco companies also were alleged to have targeted some of their advertising at children. Teen smoking is a special problem because few teenagers have the maturity to appreciate the risks of such a habit (even if they know what they are). But there is plenty of evidence that tobacco advertising has little effect on whether teens smoke--even if it does influence brand preference.⁵⁹

Overall, teen smoking rates are determined by teen attitudes, which have almost no relationship to tobacco advertising (teen smoking rates increased in six European countries when tobacco ads were banned, and some countries have higher teen smoking rates than America).⁶⁰ An argument also can be made that teen attitudes are affected more by whether anti-smoking crusaders emphasize taking personal responsibility (when rates decline) or demonizing the tobacco companies (when rates increase again).⁶¹

But under any set of facts, recent advertising practices targeted at children hardly seem relevant to the past Medicare or Medicaid costs. Almost no one believes that the state tobacco litigation was really about teen smoking; if it were, it would have addressed that issue in a much more narrow way. Nor could a federal recoupment lawsuit provide a solution to the problem of teen smoking.

Even more to the point, all of the real or alleged wrongdoing has little or no bearing on the legal argument over whether the federal government has a valid cause of action to recover Medicare costs from tobacco companies. And it ought to be self-evident that a defendant's popularity should have no bearing on whether suit can be brought or on the legal defense a defendant is allowed to raise. Indeed, legal protections are most necessary for unpopular defendants. A change in public opinion should have no bearing on the operation of the rule of law--assuming America still is a nation of laws.