Recent Advocacy in Support of Economic Freedom

▪ Courts Bound by Rule of Law, Not Societal Faults

        - The Boston Globe, Opposite Editorial, July 18, 2008

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The following article, by NELF General Counsel Jo Ann Kaplan and NELF President Martin Newhouse, appeared in The Boston Globe on July 18, 2008:

Courts Bound by Rule of Law, Not Societal Faults

YOUR EDITORIAL "Lead paint: Blame game goes on" (Short Fuse, July 8), slamming the Rhode Island Supreme Court for its recent decision in lead paint litigation, could not have been further off the mark. Judges do not decide who should be "blamed" for societal problems, however grave. They are bound by the rule of law, and a decision by the court that would have pleased the Globe would have been at odds with the law of every jurisdiction in the United States and the English-speaking world.

The Rhode Island attorney general effectively sought judicial creation of a new cause of action - one that the state Legislature had declined to authorize - in order to impose liability without proof of wrongdoing or causation, or evidence that any defendant's product was even present in Rhode Island. In an 81-page decision, the court acknowledged both the serious problem of lead poisoning in children and the "public health success story" that the Legislature's chosen remedies have occasioned.

The court correctly declined to create retroactive, no-fault, unforeseeable liability for lawful sales of products many decades ago. Criticizing judges for properly performing their important, but limited, function leads to public misunderstanding of and disrespect for the judiciary.

JO ANN SHOTWELL KAPLAN
General counsel

MARTIN J. NEWHOUSE
President
New England Legal Foundation
Boston

The New England Legal Foundation filed a friend of the court brief in the Rhode Island lead paint case, challenging the attorney general's requested expansion of public nuisance law.

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