From: Kent Crispin <kent@songbird.com>
Date: Sat, 12 Jul 1997 03:17:42 +0800
To: cypherpunks@cyberpass.net
Subject: Re: The Recent Trend in "Collective Contracts"
In-Reply-To: <199707102236.SAA07074@mail3.uts.ohio-state.edu>
Message-ID: <19970711120620.08802@bywater.songbird.com>
MIME-Version: 1.0
Content-Type: text/plain



On Fri, Jul 11, 1997 at 11:28:39AM -0700, Tim May wrote:
> At 12:48 AM -0700 7/11/97, Kent Crispin wrote:
> ...
> >Hmmm.  I thought the basis was completely different.  I thought the
> >deal was between legal officials of various states who were mounting
> >suits against the tobacco companies, and the tobacco companies.  That
> >is, it is essentially an "out of court" settlement of a civil lawsuit.
> >
> >As such, it would indeed not be binding on Tim May's Tobacco Co.  And
> >there are no particular constitutional issues involved, or free speech
> >issues, either, come to think of it -- the settlement is just between
> >the parties of a civil suit.
> 
> The agreement halts future lawsuits, thus depriving those who have not yet
> sued, or even those who have not yet contemplated suing, from seeking
> redress in the courts.

I don't think it is correct that the deal halts future lawsuits from 
other parties, only from the signers of the deal.

> This would seem to be a rather major constitutional issue.

Not really.  It would just be unconstitutional, and almost certainly
thrown out.  I don't think the lawyers involved are that stupid.  By
getting the major tobacco companies to an essentially private
agreement they have achieved their goals -- it would be silly to
depend on a fickle, money-hungry congress to pass some laws to enforce
it. 

> It's also unclear whether the "agreement" covers tobacco companies not even
> extant at this time (hence my use of the "Tim's Tobacco Company" example,
> where TTC is incorporated in 1998 and begins advertising with Joe
> Camel-type ads. Several states attorneys general have opinined that the
> deal means a complete end to such advertising, to sponsorship of sporting
> events by tobacco companies, etc.

As a practical matter, yes.  As a matter of law, no.  TTC isn't going
to be sponsoring tennis tournaments any time soon, I trust?  It's 
*big* tobacco that is under attack here -- the small fry don't matter.

> BTW, we're not the only ones who think this agreement, and the enabling
> legislation which is supposed to come from Congress, raise very serious
> constitutional questions.

Could you find a reference to this putative enabling legislation? I
think it is a figment of somebody's imagination.  My impression was
that the "stick" wasn't new legislation, but rather the imminent
regulation of nicotine as a drug.  There *may* be such legislation in
the works, but it seems completely unnecessary for the anti-tobacco
forces to accomplish their aims, and, in fact, a stupid thing to 
depend on.

> The problem may lie in class action suits in general. 

Completely different issue, I believe, one I would not care to argue 
either way.

[...]
> 
> There are indeed deep constitutional issues involved in both of the cases
> being discussed in this thread.

There may be some constitutional issues in the ratings issue, but all 
I have seen on this thread so far is speculation about issues that 
*might* be present.

-- 
Kent Crispin				"No reason to get excited",
kent@songbird.com			the thief he kindly spoke...
PGP fingerprint:   B1 8B 72 ED 55 21 5E 44  61 F4 58 0F 72 10 65 55
http://songbird.com/kent/pgp_key.html