The preceding chapters reveal how the peacemaking process in mass tort litigation has come to operate as a rival regime of governance. If peacemaking involves a kind of governance, then one might think that the law would be better off by having the government undertake the litigation that leads to peace negotiations. The government, after all, is in the business of making difficult trade-offs and distilling competing considerations into public policy. This chapter explains why the idea of the government as plaintiff points the law of mass torts down a blind alley. Walking down blind alleys is not necessarily a pointless activity, but its value lies chiefly in enabling one to discern other, more productive paths to travel. So, too, with the idea of the government as plaintiff, as I shall explain.
The focus here is on a significant innovation that has come to stand side by side with tort suits on behalf of private claimants, whether on an individual or an aggregate basis. The 1990s saw the rise of government reimbursement litigation—that is, lawsuits brought by the government at the federal, state, or local level to achieve two intertwined goals: (1) to recover the additional increment of expense to the public fisc alleged to stem from some manner of wrongdoing by the defendant industry in the past, and (2) to bring about changes in the ways that industry markets its products, so as to advance public health and safety in the future. The premise of government reimbursement litigation typically is that the underlying product will remain on the market in some form, not disappear entirely.
In 1998, government reimbursement litigation brought by the vast majority of state attorneys general on behalf of their respective governments led to the largest civil settlement in history: the Master Settlement Agreement (MSA), under which the major firms in the tobacco industry shall