This is the Cato Daily Podcast for Saturday, August 31st, 2019.

I'm Caleb Brown.

An Oklahoma judge has hit Johnson and Johnson with a more than 500 million million fine for the company's part in the current

opioid crisis. The path taken by Oklahoma was to sue Johnson and Johnson's activity as a public

nuisance. Cato's Walter Olson discusses the too long history of states using public nuisance law to bring

dollars into state coffers.

You know, shortly after this verdict was announced it I heard on the radio that Johnson and Johnson

had been found guilty now that's a standard of evidence that applies in criminal, not so much in civil court.

The terminology you would find in a criminal case and that is not used in a civil

case.

Okay, so what did the judge find Johnson and Johnson liable for having done?

The case was decided not under product liability, which is usually how companies get tagged with that kind of verdict,

but under something called public nuisance law, and that is one of the reasons the case is so controversial and so widely watched. Public nuisance law has a long

history and common law, but it would typically be found in cases of local contact.

You could sue over smoke or noise or wandering animals,

maybe a body house or something that disturbed the quiet of your neighborhood or reduced your ability to enjoy it.

And what has happened in more recent years is that lawyers in ambitious, typically industry-wide or billion-dollar litigation have been trying

to deploy public nuisance law in entirely new directions that would have dumbfounded the judges from not that long

ago saying that for example the sale of guns is a public nuisance.

And that was tried in many cases until Congress shot it down

with the legislation that closed down the gun litigation, but they have also

tried it with, for example, climate change. Now, climate change, you know, no matter how serious a problem it is, it's not something that, where you can find close causal

...