An Antiquated Law?

Originally published at IntellectualCapital.com
By K. Daniel Glover

Ask just about anyone whether consensus is a good thing, and you will hear an unqualified “yes.” And who could argue with such a response? Harmony and agreement seem far better than the alternatives of division, gridlock and stalemate marked by petty bickering.

Yet consensus has a down side, especially in the governmental realm. When all parties agree that a particular idea, at least on its face, is a good one, or when once-vocal opponents cower in the wake of a perceived mandate, they too often are quick to pass laws without substantive debate. In their rush to legislate, they leave their successors to guess at and squabble about their intent.

Such is the case with the 1906 American Antiquities Act, an obscure law once again under attack after President Clinton’s April 15 decision to dedicate 328,000 acres of the Sierra Nevada in California as the Giant Sequoia National Monument. The statute, enacted after little debate during America’s most noteworthy conservation era, periodically has been a lightning rod for controversy, as policymakers have debated exactly how much power to protect public lands Congress intended to give the president.

A consensus on conservation
For much of the United States’ first century as a nation, the impetus for the federal government’s land policy was westward expansion. As it added huge expanses of territory to its holdings, including 1.6 billion acres alone with the Louisiana Purchase, the government encouraged settlement of those lands by giving it away to railroads, economic interests and its people.

That policy had its advantages and disadvantages. “These land policies did hasten westward expansion,” says The Encyclopedia of the United States Congress. “But congressional oversight of public land management, negligent or indifferent at best, also permitted profligate waste, corruption and disregard of land laws.” Land mismanagement reached the level of national scandal by the 1870s.

The devastation eventually led to reforms. In 1872, Congress designated the headwaters of the Yellowstone River as the first national park. Later, it enacted sweeping laws like the Forestry Reserves Act of 1891, which gave the president the power to “set apart and reserve … public lands, wholly or in part covered with timber or undergrowth … as public reservations.” In its first two years on the books, President Benjamin Harrison used the law to create 15 forest reserves totaling more than 13 million acres.
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The Fate Of Guns And Tobacco

Originally published at IntellectualCapital.com
By K. Daniel Glover

When Smith & Wesson signed a gun-control deal with the federal government and several local governments March 17, the agreement triggered memories of two other legal settlements tobacco manufacturer Liggett Group Inc. accepted almost exactly four years earlier.

President Clinton heralded the 1996 Liggett deals as “the first crack in the [tobacco industry’s] stone wall of denial” about the dangers of smoking. Indeed, other cracks soon appeared: the payment of hundreds of millions of dollars in legal settlements, admissions that smoking causes disease and the acceptance of more regulation. Now the Clinton administration and gun-control activists are wondering how many concessions they can elicit from the less-consolidated and less-wealthy gun industry in the wake of Smith & Wesson’s capitulation.

The fact that Liggett was only a bit player in the tobacco saga, with a market share of 2 percent in 1995, and that Smith & Wesson is the nation’s oldest and largest handgun manufacturer is encouraging. But observers of and participants in the tobacco and gun debates are divided on what comparisons, if any, can be drawn between the two deals and what impact the Smith & Wesson pact may have in the gun-control debate.

‘The next tobacco’
Gun foes’ hopes of seizing on the Smith & Wesson settlement to force the gun industry into submission are understandable when you consider the genesis of the more than two dozen gun-related lawsuits. The legal debates about tobacco and guns have been intertwined ever since the city of New Orleans filed the first suit against 15 handgun manufacturers, three trade associations and several gun dealers Oct. 30, 1998.

That suit and the others — which seek to impose rules on the safety, marketing and sales of guns, and to reap financial penalties for the health-related costs of gun deaths — were patterned after cases filed against the tobacco industry. Brian J. Siebel, an attorney with the Center to Prevent Handgun Violence, made that connection clear in a St. Louis University Public Law Review report. “Through nationwide city and county lawsuits,” he wrote last year, “guns have become the next tobacco.”

Both the Liggett and Smith & Wesson pacts also marked a crack in industry lines that once seemed invincible. As recently as Feb. 1, The Denver Post reported that the gun industry as a whole had spurned Clinton administration talk of a settlement. The tobacco industry once held the same sentiment.
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Long Live The Merchants Of Death

Originally published at IntellectualCapital.com
By K. Daniel Glover

If you believe the headlines out of a Miami courtroom April 7, the once seemingly invincible tobacco industry is doomed. Conventional wisdom now says that the $12.7-million penalty a Florida jury voted to impose on cigarette makers, along with the promise of more compensatory damages in the class-action suit and punitive damages that may top $100 billion, will prove to be the straw that broke Joe Camel’s back.

That wisdom seems sound when you consider the string of bad news for tobacco tycoons over the past few years — a multibillion-dollar legal settlement in 1998, a string of anti-tobacco verdicts since then and the declining value of tobacco stocks, to name a few. Even Dan Webb, the lead tobacco attorney in the Florida case, warned in court April 10 of the “enormous risk that an industry is going to be destroyed.”

But like the long-ago pronouncements of Mark Twain’s death, the reports of Big Tobacco’s unavoidable collapse have been greatly exaggerated. Assuming they do not smoke the cancer sticks they create, officials at Philip Morris, R.J. Reynolds, et al, can breathe easily because tobacco, as they surely know, will be a viable industry for a long time to come.

A record of success
Journalists who know little or nothing of tobacco’s record in the annals of American policy are naïve to seize on developments like those in Florida to forecast the industry’s death. “I think far too many people wring their hands about the imminent demise of the tobacco industry than the evidence really supports,” David Logan, a law professor at Wake Forest University in the heart of tobacco country, told the Winston-Salem Journal after news of the Florida case broke.

Even a cursory glance at the past would convince the most trusting of scribes to filter the hype from both pro- and anti-tobacco forces, who have strategic reasons to predict that the end is near. History unquestionably is on tobacco’s side.

The noxious weed has endured countless attacks since colonial days — England’s James I condemned smoking as “a custom loathsome to the eye, hateful to the nose, harmful to the brain [and] dangerous to the lungs” as early as 1604 — but it always seems to find a market. And its defenders always seem to find a way to win, or at least to achieve a favorable compromise.
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