... SEE YOU IN COURT

I've been as inclined as the next person to lament our excessive
litigiousness. Surely when it comes to making public policy, we ought to
stay out of the courts: Do we believe in representative government or not?

Lately, though, I've been wondering. The success of lawsuits against
once-invincible Big Tobacco -- and the prospect of the same against Big Gun
interests -- may have won me over. Couldn't lots of stalled issues use a bit
of legal spurring?

I know the criticism: Public policy should be made by legislators, not
lawyers. But sometimes legislators don't make policy or come close to
fulfilling public wishes. When powerful interests, money or inertia thwart
progress, courts look mighty tempting.

Some issues have simply glaciated in Congress, all frozen over, no movement,
only a pretense of debate. One is gun control. Thanks to the National Rifle
Association's stranglehold, the most modest of steps -- might one handgun
per person per month suffice? -- have been nonstarters.

But the gun lobby's vaunted solidarity is now crumbling. You could see this
when, after the Littleton tragedy, gun makers began parting ranks with the
NRA -- allowing that a lock on a gun might not affront our Founding Fathers
and accepting a White House invitation to discuss youth violence.

The smell of lawsuits in the air clearly contributed to this new
reasonableness -- a series of suits filed by cities, modeled on the tobacco
cases. A recent New Yorker article tells the fascinating tale of how lawyers
in the tobacco suits are helping lead these municipal gun-control efforts.

Just as the specter of legal activity jostled the gun lobby, it also shook
things up in Congress. That's part of the appeal: Action in the courts thaws
the legislative glacier, motivating action in Congress, where it ought to be.

Civil rights worked this way, with lawsuits accompanying, sometimes
spurring, legislation. Environmental action lately has ended up in the
courts so frequently that progress has all but ceased -- which in itself has
caused business and public interests to seek more effective, market-friendly
ways to protect the environment.

Just think of the issues long frozen in Congress that a bit of legal
brandishing could melt. How about lawsuits charging misappropriation of
public funds by those who build prison after prison and throw drug addicts
into them, instead of treating the addicts? Blame the so-called
"prison-industrial complex," the political allure of being "tough on crime"
or simple inertia: Public policy is completely out of kilter when it comes
to drugs, crime and prison.

The National Center on Addiction and Substance Abuse at Columbia University
says more than 1.7 million people are behind bars in America. And 1.4
million -- 80 percent -- "either violated drug or alcohol laws, were high at
the time of their offense, stole property to buy drugs, [or] have histories
of drug and alcohol abuse and addiction."

A recent study by the nonprofit Drug Strategies showed that 85 percent of
child abuse cases in the District of Columbia involve a parent who abuses
alcohol or other drugs. Nearly 70 percent of all people arrested test
positive for drugs. Two-thirds of homicides are drug-related. Yet, as drug
use in the District has gone up over the past five years, the number of
outpatient slots and inpatient beds for treatment has dropped by 50.3
percent. The city spends $43 per capita on drug prevention and treatment,
$1,257 on criminal justice. Nationally, too, the proportion of funds for law
enforcement as opposed to treatment is far greater and increasing much faster.

One state has broken this irrational habit. Arizona has mandatory treatment
for nonviolent drug offenders, a program that the Arizona Supreme Court last
month estimated has saved more than $2.5 million in its first fiscal year.
Arizona voters through Proposition 200 made Arizona lawmakers break the
prison-funding habit and spend money for drug treatment. Why not sue to make
other legislators do the same?

Once that issue is thawed, think of the possibilities: Americans
overwhelmingly favor paying our long-delinquent United Nations dues. How
about a breach-of-contract suit? Or why not sue to stop the hugely expensive
and strategically destabilizing national missile defense program, now such
an article of faith that no intelligent debate takes place about it?

From campaign finance to term limits, we've been desperately seeking a cure
for our sclerotic politics. Meanwhile, the anti-tobacco lawyers may have hit
on it. One whiff of a policy being shaped in the courts, and representative
democracy begins to restore itself.

See you in court?