Law Professors Debate Tobacco Lawsuits

Recent lawsuits brought by the federal government against the tobacco industry prompted a small forum debate between two Harvard Law School professors yesterday afternoon.

Dubbed "Big Government vs. Big Tobacco: Do the government lawsuits have merit?," the debate featured Cogan Professor of Law W. "Kip" Viscusi '71, who has testified for tobacco companies, and Professor of Law Einer R. Elhague '83, who has advised Janet Reno on the Justice Department's lawsuit.

Leading off, Elhague argued that the tobacco industry violated antitrust laws through a conspiracy against safety developments, which he called, "a gentleman's agreement not to market safer cigarettes."

He also attacked the industry's denial of the addictive properties of cigarettes and its targeting of children as an important consumer sector.

"Antitrust violations and fraud are not immune from litigation," Elhague said in response to the objection that cigarettes are a legal product.

After 15 minutes, Viscusi stepped up to the podium and presented the audience with a number of statistics on different social costs "per pack." Viscusi is one of only three professors at Harvard Law School without a J.D., having received both his A.B. and Ph.D in economics.

He argued that analysts have failed to take into account a "death credit"--the savings due to smokers' short life expectancies--when calculating the costs of smoking in lawsuit estimates.

According to his calculations, the federal government actually saves $0.52 per-pack as a result of the early deaths, which alleviate the need to pay Social Security benefits and keep elderly in nursing homes.

Vicusi said his analysis has led critics to call him "ghoulish" and a "merchant of death," but attacked these claims as "arguments of desperation."

Around 20 students and professor turned out for the debate. Students said most had attended because they were in classes taught by Elhague or Viscusi, or had seen signs advertising the event.

Sasha Volokh, 26, a first-year law student, had written about tobacco public policy for a Los Angeles think-tank.

"I feel that tobacco litigation is universally applauded," said Volokh, who himself is against the legislation. "You don't often hear the other side."

"I'd never really seen a debate--I thought it might be interesting," said second-year law student David N. Biscan.

"I wish the industry had played out the suits," he said. "Now we don't have a precedent set for other products such as guns."

The debate was sponsored by the local chapter of the national conservative/libertarian Federalist Society, which solicited Viscusi and asked him to find a suitable faculty member to debate.

Ken K. Lee, vice president of the organization said that its purpose is "to promote pressing debate on contemporary issues." Past debates have focused on issues such as affirmative action and gun control.