‘Common Law’ S2 E1: The Nonsmoker Revolution

‘Common Law’ S2 E1: The Nonsmoker Revolution


RISA GOLUBOFF: Hello
and welcome back to Common Law, a podcast
from the University of Virginia School of Law. I’m Risa Goluboff, the dean. LESLIE KENDRICK: And I’m
Leslie Kendrick, the vice dean. Risa, I think we should
just dive right in. Are you ready? RISA GOLUBOFF: I’m ready. Are you ready? LESLIE KENDRICK: Let’s do it. RISA GOLUBOFF: OK, so
it’s January 11, 1964. [AUDIO PLAYBACK] – This is a CBS News extra
on smoking and health. The findings of the Surgeon
General’s committee. [END PLAYBACK] RISA GOLUBOFF: And President
Lyndon B. Johnson’s Surgeon General holds this really
unusual press conference at the State Department
in front of a packed crowd of 200 journalists,
bureaucrats, and businessmen. LESLIE KENDRICK: Now, at the
time 70 million Americans– that’s about half the country– were smokers. And Dr. Luther Terry
had some unpleasant news for them delivered
in a 387 page report by a blue ribbon committee. [AUDIO PLAYBACK] – Out of its long and
exhaustive deliberation the committee has reached
the overall judgment that cigarette
smoking is a health hazard of sufficient
importance to the United States to warrant remedial action. [END PLAYBACK] SARAH MILOV: And this
is the first government document that basically says,
“Hey, smoking causes cancer.” LESLIE KENDRICK: This is historian Sarah Milov, whose new book “The Cigarette: a
Political History” traces the fate of tobacco
in the United States in the 20th century. She says Dr. Terry’s press
conference marked a turning point in how Americans
viewed and regulated smoking. SARAH MILOV: Even though
we have this sense that, “Oh, in the ‘Med Men’
era of mid century, everybody was smoking,”
that’s not exactly accurate. But what is accurate
to say is maybe smokers weren’t ubiquitous,
but smoke was everywhere. [MUSIC PLAYING] LESLIE KENDRICK: Over
14 months, the committee had gathered data showing,
among other things, that smoking was killing as
many as 41,000 people a year– more than car crashes. Sarah told us this work
was remarkable for a couple of reasons. In appointing
experts to the panel, Terry asked professional
associations to weigh in, but he also gave
the tobacco industry veto power over who would
serve on the committee, then he went one step further. SARAH MILOV: And so
when the 10 men– and it was all men on the
committee– were finalized Terry
insisted, because he knew would be such a matter of
public debate, that 5 of the 10 be smokers and 5 of
the 10 be nonsmokers. So this canonical
document in public health was itself the product
of a smoke filled room. LESLIE KENDRICK: All the
same, the committee’s findings were unanimous. In no uncertain terms,
Terry urged smokers to quit. He told children never to start. And above all, he pleaded
with government agencies to do something about it. RISA GOLUBOFF: The other
thing about this moment that struck me, Leslie,
was that Dr. Terry’s press conference was
held on a Saturday, because he wanted to make sure
that his announcement wouldn’t roil the markets. As Sarah told us, this
shows how important tobacco was to national economy. Of course, it was also crucially
important to national politics. SARAH MILOV: There was also
the real and inescapable power, essentially, of Southern
Democrats in Congress, many of whom represented tobacco
growing districts or cigarette manufacturing areas. So it’s fair to say
that tobacco’s presence in American political
life in the 20th century was very outsized. [MUSIC PLAYING] RISA GOLUBOFF: As it turns out,
in fact, despite the report’s findings, there wasn’t
much government action on tobacco for years. In the immediate aftermath of
the Surgeon General’s news, Congress actually moved to curb
the Federal Trade Commission’s plan to mandate strong clear
Warning labels on cigarettes. A new federal law toned
down that language and blocked the
agency from touching the issue for four years. SARAH MILOV: I
think one insight of the history of tobacco
is it’s not the science that stops people smoking. It’s basically social activism. So what does this mean? Well, it means it’s
still going to be incumbent upon creative
lawyers, and later social groups if you want to see any
remedial action on tobacco. [MUSIC PLAYING] LESLIE KENDRICK: We’re going to come back in
a minute to our interview with Sarah Milov and explore
some of that legal activism around tobacco,
including, actually, its unintended consequences. RISA GOLUBOFF: That’s
right, Leslie, we thought this would be a really
great story to launch Season 2, which we’re calling “When
Law Changed the World.” LESLIE KENDRICK: If you’ve
been following the show you know that last
season we looked ahead to the future of law. We’re kind of doing the
opposite this time around, we’re looking back and
trying to understand how we got to where we are today
on a lot of important issues. RISA GOLUBOFF: So
throughout the season we’ll bring you stories
about crossroads and legal history, diving
deep into some crucial moments when the law and lawyers
made a real difference. LESLIE KENDRICK: So I’m really
excited about the season, Risa, and this opening
episode, because I think they play so much to you
as the legal historian and all of the expertise that
you bring to that. RISA GOLUBOFF: Well
that’s very kind, Leslie. I’ve been thinking as I look
forward to all of our episodes that they’re actually going to
play to both of our strengths. There’s a lot here about civil
rights and civil liberties, about free speech and equality. So I think it’s really
going to bring out your expertise as well. LESLIE KENDRICK: I’m excited. RISA GOLUBOFF: Me too. LESLIE KENDRICK: So why don’t
we get back now to our interview with Sarah Milov, who’s an
assistant professor of history here at UVA. And let’s pick it up
where you were asking her about the legal
landscape that took shape right after the Surgeon
General’s report came out. RISA GOLUBOFF: And a
big part of your story is really about the interaction
between federal agencies, bureaucracy, politics,
and then the law, right? And not just the law,
but also social activism. So tell us about the
rise of that advocacy and that activism, where
does that come from in 1964 and after? SARAH MILOV: Right, so we’ve
got a scenario in 1965 and 1966, where the government said,
hey, smoking can kill you, but Congress is basically
hamstrung the ability of any agency to do something
about that, or so it thinks. Now, this might be of interest
to law students out there, because it was the creative
action of a very young– a 27-year-old– lawyer just a couple of
years out of Columbia Law, whose name is John Banzhaf. He wrote a petition to the
FCC, the Federal Communications Commission, with a
very creative argument. He said that, look, there
is so many hours every day given over to
tobacco advertising. Tobacco was the most advertised
product on TV at the time. Tobacco, as the Surgeon
General has said, is clearly a subject
of public importance. We have this rule called
the Fairness Doctrine that says that issues of
public importance must receive free equal airtime. So if the tobacco industry
is pumping hundreds of millions of dollars
into tobacco advertising, well, then public
health should get its own equal and opposite
counter advertising. RISA GOLUBOFF: This was a pretty
radical and creative argument to be making. SARAH MILOV: Absolutely. Absolutely radical and creative. So in a decision that took
everybody by surprise– probably Banzhaf
himself, as well– the commission basically
says, yeah, this is a subject of
public importance and the counter advertising
won’t get equal airtime, but– they kind of made up a
number here– a 3 to 1 ratio. This still resulted in, by
one estimate, $80 million worth of free airtime for
anti-tobacco advertising. So if any of you remember
those kind of gritty truth advertisements of the late
’90s and early 2000s these in the late ’60s and early ’70s
were definitely the precursor to those. RISA GOLUBOFF:
This is your brain. This is your brain on drugs. Those kinds of things. SARAH MILOV: Right, well– RISA GOLUBOFF: Those were
the later ones, right? SARAH MILOV: Yeah, I
think, actually, it was more shocking to see some
of the early anti-tobacco ads. For example, you know, TV
viewers in the late ’60s would have probably
been familiar with the show Perry Mason. And every week
Perry Mason went up against a DA played by
a man named Bill Talman. Bill Talman lost every
week to Perry Mason. In this ad, which was shot
with a hand-held camera in his backyard– so it’s
this very personal scene. WILLIAM TALMAN: This is
the house we lived in. This building. SARAH MILOV: You see his
kids playing in a pool. WILLIAM TALMAN: Barbie, looking
after her brother, Timmy. SARAH MILOV: He’s
talking through all that he has to lose. WILLIAM TALMAN:
Susan, our youngest. And my wife Peggy, who
looks after all of us. SARAH MILOV: And at the end of
the advertisement, he says– WILLIAM TALMAN: I’ve
got lung cancer. SARAH MILOV: If you’re
hearing this ad, that’s because I’ve
lost, basically, my biggest battle, yet. WILLIAM TALMAN: So
take some advice about smoking and losing. SARAH MILOV: And when
the ad ran Bill Talman was dead of lung
cancer at age 53. RISA GOLUBOFF AND LESLIE KENDRICK: Wow. SARAH MILOV: So this was a
very, you know, affecting, affective type of thing
to see on TV really to viewers who are not used to
being addressed on that level. So now people remember
these advertisements too. When government
surveys were done in the early 1970s about
essentially the efficacy of these advertisements,
people said basically these advertisements
registered with them to help them stop smoking. LESLIE KENDRICK: So does that
have a role in explaining the rise of social activism
on this, or how does it fit, and where does it go from there? SARAH MILOV: So the
anti-smoking movement in the late ’60s and
early ’70s, I’d say, it’s useful to think of
them as running on two initially parallel tracks. So you have John Banzhaf, who
after his Fairness Doctrine coup, ends up leaving
his white shoe law firm, one of whose clients
was, in fact, Philip Morris. So he may not have been a
totally welcome presence at the office. RISA GOLUBOFF: They
couldn’t have been happy. SARAH MILOV: Right. But he gets a job as
a law professor at GW. He moves his operations to DC. And he ends up using
his students in a class that he called Unfair Trade
Practices, basically to be a little social activists. And he was modeling
himself off of Ralph Nader. Where Ralph Nader
had his Raiders, Banzhaf had his Bandits. RISA GOLUBOFF: So Ralph
Nader was the father of consumer advocacy in
the United States right around this time. SARAH MILOV: Right. Also a young lawyer. Also successful in using kind
of splashy and inventive legal tactics to garner attention
that would eventually change people’s attitudes
toward big corporations. And he ends up founding an
organization called ASH, Action on Smoking and Health. And, initially, ASH was
monitoring the extent to which news
stations were being faithful to their obligations
under the Fairness Doctrine. So a lot of what
ASH does at first is basically making
sure that the rules are being followed that ASH
set in motion to achieve. RISA GOLUBOFF: So presumably,
that enforcement role is often undertaken by
government itself, right? But here he was
kind of volunteering to make sure that the
enforcement was happening. SARAH MILOV: That there was
not as a robust consumer lobby, even though what they
were trying to do was to countervail the power
of very well organized business interests. So his law students end up
pursuing the Banzhaf method in class in a variety of ways. Basically, he gives
them assignments to launch an action
against an agency. Now, an action
could be a petition, a protest that you get the
media out to cover, or maybe even a lawsuit. And some of these end up getting
kind of a lot of attention. So part of the
Banzhaf method is also to give your group a punny
title — LESLIE KENDRICK: Because why not? SARAH MILOV: Why not? So one of these
groups was called CRASH. I do question the
wisdom of this acronym for this particular issue. But it stood for Citizens to
Reduce Airline Smoking Hazards. LESLIE KENDRICK: Ooh, they
should have thought that one through a little bit better. SARAH MILOV: Yes, but
you’ll thank them, because this was part of a
Banzhaf initiated petition to separate smokers and
nonsmokers on airlines. And this ends up being
perhaps the genesis of the modern nonsmokers
rights movement. The goal of this
petition essentially was to go beyond the
consent based paradigm that even Banzhaf himself
had relied upon with the FCC petition. I mean, the whole idea behind
the Fairness Doctrine– and really a
Warning label, too– is that, OK, if we give
you the information you are able to make
a choice about what you decide to consume. Now, the idea behind the
smoking section petition was that there are people who
are affected by other people’s decisions to smoke. And perhaps there
is no place more enclosed where that decision is
more effective to other people than an airplane. RISA GOLUBOFF: And
so you’re actually regulating the behavior
of the smokers, rather than simply
giving information to smokers in the hopes
that they will stop smoking. You, a smoker, can only
sit-in this section. SARAH MILOV: You’re
regulating the behavior not only of the smoker but also– RISA GOLUBOFF: The non-smoker. SARAH MILOV: But
also of the airline. RISA GOLUBOFF: Right. SARAH MILOV: And so the airlines
end up trying to preempt this. They don’t want to be told
by the FAA, or the Civil Aeronautics Board, another
agency that regulated air flight, what they can
do on their flight. So they tried to preempt
this, but they also didn’t want to deal with the
hassle of actually having to move bodies in seats and deal
with squabbles between smoking and non-smoking passengers. So they basically wanted to
cordon off a very small section of the airline for nonsmokers. It was easier for them
to regulate nonsmokers in a more restricted way. RISA GOLUBOFF: So am
I the only one here who remembers being
on an airplane with a smoking section? LESLIE KENDRICK: Oh, I remember. RISA GOLUBOFF: You do? LESLIE KENDRICK: And, in
fact, I was on a flight to Japan in the early 2000s. And it still had
a smoking section. RISA GOLUBOFF: And I remember
thinking, even at the time, this isn’t that effective. I mean, yeah, there
are sanctions, but you’re still in this one
very small, enclosed space. And the smoke doesn’t stay
in one area of the plane. SARAH MILOV: It was
absolutely not affective. However, bans I have sought
to achieve two things. First, somebody had submitted
an even more stringent petition, Ralph Nader, to ban smoking
overall in airplanes. But by kind of occupying this
middle ground that, we’ll just segregate smokers and nonsmokers
rather than banning it totally, Banzhaf sought to make a
more moderate position that also kind of meant he would be
seen as the kind of champion of this cause. The other thing that’s
important to keep in mind is even if it wasn’t
totally effective, by our standards of
smell and sight today, it did remind people that
they were nonsmokers. The way business had
organized itself before was not on their
side and that things could be done to change that. And so this was
something that Banzhaf have sought to capitalize on. For example, ASH bought
ads in newspapers that told readers of the
newspaper to send comments to the Civil Aeronautics Board
in support of the ASH proposed rule. And, in fact, people did this. The CAB received more comments
on this proposed non-smoking section than they’d received
for any other question that had ever gone before the agency. It filled five volumes
in their record. So by the time that this
becomes a rule, in part because of ASH’s advocacy, people think,
well, hell, it’s about time. But that idea did
not exist prior to kind of getting
these wheels in motion. LESLIE KENDRICK: It sounds
like another concept that it highlighted for
people was secondhand smoke. The idea that this is not just
a liberty principle issue, where we’re trying
to effect smokers own choices that
affect only themselves. But that this is
a harm principle issue, where this is activity it
imposes harms on third parties. And, you know, it sounds like
partly the science on that gets going. And then, there’s also
this framing of the concept that secondhand smoke kills. And if you don’t
smoke you’re still exposed to these sorts of risks. SARAH MILOV: Yeah. A couple of things are going on. First, Banzhaf does
not succeed, because he puts ads in a newspaper and some
highly motivated individuals respond to them by
petitioning an agency. What is happening in
parallel– and this is kind of the other
wing of the movement– are grassroots, decentralized,
chapter based activism in the name of the non-smoker. LESLIE KENDRICK: So this
is the second track that you were talking about? SARAH MILOV: Yes. And so there’s
kind of a symbiosis between these chapter based,
grassroots groups and ASH. And, in fact, there’s
also a symmetry in terms of their
desire to use puns. These chapter groups
are called a GASP, Group Against Smoking Pollution. And these really start
off super grassroots. The first GASP chapter
was formed in 1971 by a woman named
Clara Gouin who worked inside the home. And was basically
motivated, at first, just to put up a nonsmoking
sign in her own home, to declare her own
home as off limits to smokers, which tells you
people felt cowed by smoking. And I don’t think gender– RISA GOLUBOFF: But the
smokers had the entitlement. SARAH MILOV: Right. And I think the gender aspect
of this is important here. Remember, it’s not 50% or
42% of Americans that smoke. It’s maybe half of men by the
early 1970s, and 30% of women. So Clara Gouin in is
motivated to stop smoking in her own home. And she’s also very
frustrated with the fact that she can’t go out
to eat with her family, because her daughter
has a tobacco allergy and there’s no
place they can sit in a smoke free environment. So she gets together with
some of her friends– again, largely women–
and they basically start a letter writing campaign
to local doctor’s offices, just asking them, “Hey, do you
think that you’d maybe proclaim your waiting room smoke-free?” Now, they write to 700 offices. They don’t hear from very
many, but 50 say, “Hey, sure. Good idea.” That’s pretty good investment,
at least in the beginning. By the mid-1970s
these GASP chapters have spread all
around the country. And while they started in
College Park, Maryland– where the University of Maryland
is– while they kind of start off in well educated
enclaves, they’re by no means exclusive
to those areas. RISA GOLUBOFF: And I take
it that the gender component is not only about who smokes
and who’s affected by smoke, but also the early 1970s. This is the moment of
the feminist movement and the rise of
second wave feminism. So I’m guessing there’s
a relationship there too. SARAH MILOV: Yeah, the idea that
these nonsmokers rights groups had very much built off of
the goals of the civil rights movement, basically
to frame themselves as an oppressed minority
that could take action into their own hands. They also used the tactics
of the feminist movement. But many of these
women might not have identified as feminists. And some of them didn’t
work outside the home. But what they were
trying to achieve was very much in line with
what feminists at the time were trying to achieve, which
was a shift in consciousness. By speaking together about their
shared oppression as nonsmokers you could make people
believe that they were a category of people
called nonsmoker, and thus entitled to rights. RISA GOLUBOFF: Right. So it strikes me that there is
a conceptual debt to the women’s movement and civil rights. The idea that there
are people with rights, and the categories
of people with rights are not set at one time. SARAH MILOV: Right. RISA GOLUBOFF: There
can be new categories of people with rights. And then, in addition,
the kind of strategic debt that they are building
on the strategies of these other movements in the
way they go about trying to, not only call themselves
people with rights, but actually have those rights
and enforce them in some way. SARAH MILOV: Precisely. And, you know, some of this
was really tendentious. For example, there
was a publication that they disseminated called
“The Nonsmokers Liberation Guide.” Clearly, it’s got its debts
to other rights movements happening at the time. But some of the strategies
for achieving liberation were maybe something a little
less than revolutionary. One strategy was if you are
somebody whose job requires you to speak in front of
people, ask for the room to be non-smoking. It’s a good idea. But if you’re the kind
of person whose job asks you to speak
in front of people that gives you a clue
to probably the class background of a lot of
people in this movement. So they’re very much in debt
to the civil rights movement and the feminist movement. But there was a
grandiosity to the types of claims that we’re
making about the world historical importance
of what they were doing, without kind of
reflecting on the ways that their strategies
ended up burdening those who were perhaps, you know, not
as well situated as they were. RISA GOLUBOFF: So they
had privilege as well as– SARAH MILOV: They had privilege. LESLIE KENDRICK: Can you
say a little bit more about the burdens of
what they’re looking for and what they’re
seeking to impose. SARAH MILOV: So
basically, their idea was that grassroots
activity would succeed more at the local level. And they were absolutely
right about that. By 1977 hundreds of cities
around the United States had passed, what we would
consider today, mild, but anti-smoking ordinances
nonetheless separating where people could smoke. Which did further
the movement’s goal of moving the social
default away from smoking. But what this meant in
practice was at least sometimes to
criminalize smokers. That sometimes these
laws were written in a way that allowed for
potentially pretextual policing of smokers who were
people of color. And so, for example,
in Chicago there is a smoker’s court established. And one journalist
visited the smokers court, because there was such a
volume of these citations. And basically, everybody who
was there was a person of color. And they were only
there, not because they need to go to court for
this level of offense, but basically they
couldn’t pay their fine. So that’s an example. And I think actually
you still see that today in kind of the class
stratification of who continues to smoke. LESLIE KENDRICK: So one thing
that strikes me in your book and in talking with you is we
have conceptions today of what type of issue tobacco is. And from a legal
standpoint, I think, people would say this is a
products liability issue. This is an issue
primarily for regulation by the federal government. And within the federal
government it’s an FDA issue. And the other actors
here are the states, and the state attorneys general
settlement in the late ’90s. But the story you’re telling is
one of– the surgeon general’s involved, the FCC is
involved, the FTC is involved, local governments are
involved, you know, you see ordinances before you
see action on the federal side. The issue has just
evolved really over time. And the box that it fits in
now seems maybe predetermined, but it wasn’t at all during this
entire evolution of the issue. SARAH MILOV: Yeah. I mean it might
surprise people to know now OSHA, Occupational
Health, does not regulate workplace smoking. That is done at the
state and local level. In part, that’s because of the
legacy of the nonsmokers rights movement having successfully
worked through local law. I think a lot of people in
the nonsmokers rights movement are very wary of
federal regulation, because some of the truisms
that held in the 1960s– that is Congress is a friend
to the tobacco industry continued to be true. So I think you continue to
see this in the way people within the anti-tobacco movement
conceive of the movement’s history. And this is still
an issue, especially as you see the emergence
of Juul and e-cigarettes as a new public
health challenge. RISA GOLUBOFF: So can
you talk a little bit about where that stands
in terms of regulation, and what kinds of lessons we
might be able to apply to it? SARAH MILOV: Yeah, I mean kind
of like with tobacco earlier in the 20th century,
now the Surgeon General calls vaping an epidemic. And there is a real desire
by anti-tobacco activists to require that e-cigarettes
are regulated at the local level just like cigarettes. So if you’ve got a local
law, again piggybacking off the success of the local
ordinance strategy, that if you’ve got a local
law that says no smoking then that counts for
e-cigarettes as well. Now, the vaping industry,
piggybacking off the knowledge now that the way to
fight local ordinances is through preemption, is
trying the state house strategy at kind of neutering
the ability of cities to restrict e-cigarettes
in that way. RISA GOLUBOFF: Do you think that
the arguments against vaping won’t be as successful,
because there’s not the same secondhand
smoke aspect to it? SARAH MILOV: I
think that it took a very long time for
evidence of secondhand smoke to emerge for tobacco. It took until the early 1980s. And it wasn’t until 1986 that
the Surgeon General came out with its own report on
involuntary smoking. So actually, you know, it’s
going to take a while for us to know the second
hand effects of vaping, but maybe one lesson of the
nonsmokers rights movement is that social activism and
success at regulating smoking can actually come
before the science. [MUSIC PLAYING] LESLIE KENDRICK: That was
UVA historian Sarah Milov. Her book, “The Cigarette,”
is available now from Harvard University Press. RISA GOLUBOFF: And what a
book, what a conversation. LESLIE KENDRICK:
Really interesting. RISA GOLUBOFF: So
I was thinking, the first thing
that came to my mind was we’ve titled our season
“When Law Changed the World” and we’re only in
our first episode, but maybe that’s
the wrong title, because it strikes me that
this conversation in her book is as much about when the
world changes the law is when the law changes the world. LESLIE KENDRICK: That seems
completely right and completely characteristic of
your approach to see the interaction between
facts on the ground, people on the ground,
lawyers, the whole system, and how that goes
into changing the law. And then, legal
change can itself have lots of impacts
on everyone after that. But it’s not it’s
not unidirectional. RISA GOLUBOFF: It’s not. It’s dynamic. And it’s what the law and
society people would like say it’s mutually constitutive. That the law and
society around it are creating each
other simultaneously, and there’s this incredible
dynamic between the two. And I think this book is
such a good example of that. LESLIE KENDRICK: And
I think it’s probably going to be a feature of
the lot of the conversations that we have in this
season, because it is just part of the way that the law
works, and the way the world works. But this book really
highlights it. RISA GOLUBOFF: I agree. LESLIE KENDRICK: So
you’re a legal historian. I teach torts and
products liability. There’s so much there
to think about from both of those directions. And then, there’s the
Fairness Doctrine, which is just out of nowhere
kind of First Amendment thing sweeps in. RISA GOLUBOFF: It gets
both your subject matter. LESLIE KENDRICK:
Super interesting. Right. So you know, for
any listeners who are wondering why the
Fairness Doctrine doesn’t get utilized in similar ways today. It was abolished in 1987. So in the ’80s the Fairness
Doctrine is abolished. And it no longer
regulates broadcasts. It only ever regulated
broadcast radio and television. Of course, in the ’70s,
that was a big deal. You didn’t have proliferation
of cable channels. RISA GOLUBOFF: That
was all there was. Right. LESLIE KENDRICK: But, yeah, it
does it doesn’t exist anymore. RISA GOLUBOFF: How
did it get abolished? Speaking of law. LESLIE KENDRICK: The FCC
abolished it under the Reagan administration. But really interesting
to see communications, and you know all of these
different tools being used to address the
issue of cigarettes. Things that you don’t think
about from today’s perspective. RISA GOLUBOFF: Yeah, the
other thing that strikes me, of course, situated as
I am, is the importance of lawyers to this story. And it’s not that they’re
the only important actors, because the grassroots
movements are– there are so many key actors– but John Banzhaf
and the strategy he comes up with
at the beginning. And then, the use
of his law students leading into more
grassroots activism. There are a lot of
lessons in this story both for how lawyers can
create change, you know, whatever kind of change
they’re interested in creating, and the importance of lawyers
even beyond the litigation contacts, but how they interact
with other forms of advocacy, and other forms
of change making. LESLIE KENDRICK: And I
think that part of the story continues through
the ’90s, which was a part of the narrative
that we didn’t talk a whole lot about. But in the ’90s, when
lawyers at the FDA assert that tobacco is a product
that they should be regulating under the purview of
the FDA, you know, those are those are
new legal claims that are being made that shift
what box tobacco goes into. And then, at the same time,
you have the states attorneys general suits, where
the head lawyer of various different states,
upwards of more than 40 of them sued the tobacco companies
claiming that the tobacco companies are responsible
for the public health costs, the Medicaid
costs, and Medicare costs that the states are paying
because of tobacco related illnesses. And these are, again, legal
moves, lawyers re-framing what tobacco is
and re-articulating what the harms of it are. RISA GOLUBOFF: And
that’s precisely what folks have been trying to do
with gun control more recently. And they’ve run into roadblocks,
because at the same time that lawyers trying
to reform an industry learned lessons from the
tobacco litigation, the tobacco anti-smoking movement,
the industry itself learned similar lessons, right? And has figured out what moves
they need to make in order to thwart the litigation that
the gun control folks wanted to use. LESLIE KENDRICK:
But I think we’re in a moment where
we’re seeing the rise of some additional
lawsuits of this kind. So there hasn’t been an
enormous amount of success on the guns front. There’s been lead
paint litigation that’s bounced around
for a long time, and seems right now to
be making a little bit more headway than it has. There’s been climate
change litigation that’s taken on the similar
shape since the ’70s, but we’re seeing kind
of an uptick of that. And there’s been just
an enormous amount of opioids litigation that looks
very similar to the tobacco litigation, and is being taken
on by local officials and state attorneys general, again,
very much in the same vein as the tobacco litigation was. And we’re starting to see
some documents come out that have a little bit of the
flavor of the kind of smoking gun documents that also were a
feature of tobacco litigation. So I think it’ll be interesting
to see what happens with that. RISA GOLUBOFF: It only just
occurred to me– smoking gun. You got the smoking and the gun
right there in the same thing. LESLIE KENDRICK: There you go. RISA GOLUBOFF: So my hope is
that every guest that we have this season will provide
such perfect symmetry with your expertise in
torts and First Amendment, with my expertise in legal
history and social movements, and may they all be
quite this integrated. So that’s it for
episode one, season two. Thanks for joining
us on Common Law. We hope you’ll stick around
for more stories about when law changed the
world, and vise versa. LESLIE KENDRICK: If you’re
a fan or even a critic, please leave us a review
on Apple podcast, Stitcher, or wherever you
get your podcasts. It’s the best way for listeners
to find out about the show. You can also subscribe to
the show on our website, CommonLawPodcast.com. Find all our previous episodes,
and delve into some background on each topic. And be sure to tweet at us
anytime at CommonLawUVA. RISA GOLUBOFF: We’ll
be back in two weeks with eminent legal
historian, Ted White, who will take us back in time to
World War II and its aftermath. TED WHITE: A powerful argument
is made by African-Americans, who come back and
say, “I’m a veteran, and I’m still being treated
as a second class citizen. I can’t go to a movie theater. You know, I can’t ride on a bus. Here I fought for my country,
and that’s just not fair.” LESLIE KENDRICK: Common Law is
a production of the University of Virginia School of Law. Our team includes Roberto
Armengol, Sydney Halleman, Virginia Kane, Mary
Wood, and Alec Sieber. Special thanks to the Virginia
Quarterly Review, where this episode was recorded. I’m Leslie Kendrick. RISA GOLUBOFF: And
I’m Risa Goluboff. See you next time.

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