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I agree with Charles Mitchell that states can prevail only if the tobacco companies, rather than the states, should ­ as a matter tort & health care policy ­ "wind up bearing the load of paying for the smokers' loss" and if the smokers are not entitled to "retain the twin benefits they had received from states and tobacco companies."

But I am doubtful whether it is indeed imperative that the states show that they were legally compellable to fund medical care for the smokers." While this would indeed make their claim an "easy case", states should be able to prevail even if this is not the case.

I have discussed this issue in some detail in "Governments, Citizens, and Injurious Industries", a piece co-authored with James J. White that was recently published in 75 N.Y.U.L. Rev. 354, 382-405 (2000). As we show there (especially in pp. 391-393, 396-398), the interests of third parties ­ insured parties in insurance cases, or citizens in the case of governmental interference in preventing or ameliorating injuries caused by an industry ­ may justifiably liberalize this requirement as long as there is no fear that the putative subrogee acted in a self-serving manner that may prejudice the interests of the party primarily responsible for the loss.

Hanoch Dagan
Tel-Aviv University Law School
Ramat-Aviv, Tel-Aviv 69978
ISRAEL
972-3-640-7302