Hostname: page-component-78c5997874-j824f Total loading time: 0 Render date: 2024-11-05T07:52:29.765Z Has data issue: false hasContentIssue false
  • English
  • Français

Law Enforcement as Legal Mobilization: Reforming the Pharmaceutical Industry Through Government Litigation

Published online by Cambridge University Press:  27 December 2018

Paul Nolette
Get access Rights & Permissions [Opens in a new window]

Abstract

Scholars of legal mobilization have long explored how litigation is used as a resource for social and political change. While most studies focus on the actions of private groups, this article considers law enforcement as a form of legal mobilization. Employing a case study of recent pharmaceutical litigation, this article examines how prosecutors have mobilized the law to reshape corporate responsibilities in the prescription drug industry. Prosecutors' litigation campaigns have forced changes in organizational practices, expanded the scope of the conflict over pharmaceutical industry actions, and established new legal norms that have spread throughout the political system. This form of prosecutor‐led legal mobilization has occurred in other contexts as well, including gun control and mortgage lending. In addition to indicating how lawyers within the state can engage in a form of cause lawyering, the government litigation explored in this article illustrates both the instrumental and constitutive power of the law.

Type
Articles
Information
Law & Social Inquiry , Volume 40 , Issue 1 , Winter 2015 , pp. 123 - 151
Copyright
Copyright © American Bar Foundation, 2015 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

References

Albiston, Catherine 1999. The Rule of Law and the Litigation Process: The Paradox of Losing by Winning. Law & Society Review 33 (4): 869–910.Google Scholar
Alpert, Bill 1997. A Drug Bust in the Making? Barron's, October 27, 14.Google Scholar
Appleby, Julie 2000. Drug Companies Face Accusations About Pricing. USA Today, September 8, B3.Google Scholar
Arnold, Matthew 2008. Four Agree to Moratorium. Medical Marketing & Media 43:24.Google Scholar
Barnes, Jeb 2007. Bringing the Courts Back In: Interbranch Perspectives on the Role of Courts in American Politics and Policymaking. Annual Review of Political Science 10:25–43.Google Scholar
Barnes, Jeb, and Burke, Thomas 2012. Making Way: Legal Mobilization, Organizational Response, and Wheelchair Access. Law & Society Review 46 (1): 167–198.Google Scholar
Barrett, Paul M. 2000. Gun Retailers Form Group to Push Views. Wall Street Journal, January 6, A4.Google Scholar
Baumgartner, Frank R., and Jones, Bryan D. 2002. Policy Dynamics. Chicago, IL: University of Chicago Press.Google Scholar
Berenson, Steven K. 2009. Government Lawyer as Cause Lawyer: A Study of Three High Profile Government Lawsuits. Denver University Law Review 86 (2): 457–508.Google Scholar
Binder, Amy J. 2002. Contentious Curricula. Princeton, NJ: Princeton University Press.Google Scholar
Butterfield, Fox 1998. Chicago Is Suing Over Guns from Suburbs. New York Times, November 13, A18.Google Scholar
Carter, Terry 2002. Drug Wars. ABA Journal 88:41–45.Google Scholar
Cloud, David S., and McGinley, Laurie 2000. U.S., States, Bayer Start Settlement Talks. Wall Street Journal, May 10, A3.Google Scholar
Community Catalyst. n.d. Mission & Values. http://www.communitycatalyst.org/about/mission‐values (accessed February 26, 2014).Google Scholar
Cutler, Joyce E. 2003. AGs Targeting Pricing, Antitrust Issues in Pharmaceutical Industry, Official Says. Pharmaceutical Law & Industry Report, October 3, 1062.Google Scholar
Danzon, Patricia M., and Furukawa, Michael F. 2008. International Prices and Availability of Pharmaceuticals in 2005. Health Affairs 27 (1): 221–233.Google Scholar
Davenport, Tania 2003. An American Nightmare: Predatory Lending in the Subprime Home Mortgage Industry. Suffolk University Law Review 36:531–557.Google Scholar
Davis, Gerald F., McAdam, Doug, Scott, W. Richard, and Zald, Mayer N., eds. 2005. Social Movements and Organization Theory. New York: Cambridge University Press.Google Scholar
Department of Justice. 2001. TAP Pharmaceutical Products Inc. and Seven Others Charged with Health Care Crimes. http://www.justice.gov/opa/pr/2001/October/513civ.htm (accessed February 26, 2014).Google Scholar
Derthick, Martha A. 2001. Up in Smoke. Washington, DC: CQ Press.Google Scholar
Elfin, Dana A. 2002. Nevada Sues Drug Companies to Recover Millions of Dollars in Alleged Overpayments. Pharmaceutical Law & Industry Report, January 24.Google Scholar
Epp, Charles 1998. The Rights Revolution. Chicago, IL: University of Chicago Press.Google Scholar
Epp, Charles 2009. Making Rights Real. Chicago, IL: University of Chicago Press.Google Scholar
Ewick, Patricia, and Silbey, Susan S. 1998. The Common Place of Law. Chicago, IL: University of Chicago Press.Google Scholar
Farhang, Sean 2010. The Litigation State. Princeton, NJ: Princeton University Press.Google Scholar
Ferree, Myra Marx, Gamson, William Anthony, Gerhards, Jürgen, and Rucht, Dieter 2002. Shaping Abortion Discourse. New York: Cambridge University Press.Google Scholar
Financial Fraud Enforcement Task Force. 2010. First Year Report. http://www.stopfraud.gov/docs/FFETF‐Report‐LR.pdf (accessed February 26, 2014).Google Scholar
Freudenheim, Milt 1993. Drug Companies Feeling Pressure of Clinton's Plan to Keep Their Prices Down. New York Times, September 30, A22.Google Scholar
Galanter, Marc 1974. Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change. Law & Society Review 9 (1): 95–160.Google Scholar
Gatyas, Gary 2011. IMS Institute Reports U.S. Spending on Medicines Grew 2.3 Percent in 2010, to $307.4 Billion. http://www.imshealth.com/portal/site/ims/menuitem.d248e29c86589c9c30e81c033208c22a/?vgnextoid=24b2f14cddc40310VgnVCM10000071812ca2RCRD&vgnextfmt=default (accessed February 26, 2014).Google Scholar
Gencarelli, Dawn M. 2002. Average Wholesale Price for Prescription Drugs: Is There a More Appropriate Pricing Mechanism? National Health Policy Forum, Issue Brief No. 775, June 7. http://www.nhpf.org/library/issue‐briefs/ib775_awp_6‐7‐02.pdf (accessed February 26, 2014).Google Scholar
Gold, Russell, and Caffrey, Andrew 2002. States Suing Drug Makers Spurn Former Allies on Tobacco. Wall Street Journal, May 29, B1.Google Scholar
Guiden, Mary 2001. States Mull Suit Against Drug Companies. Stateline, April 2. http://www.pewstates.org/projects/stateline/headlines/special‐report‐states‐mull‐suit‐against‐drug‐companies‐85899393051 (accessed February 26, 2014).Google Scholar
Hull, Victor 1987. Panel Hears Pleas for Controls: House Probes Rising Medication Prices. Los Angeles Times, April 22, C23.Google Scholar
Jones, Bryan D., and Baumgartner, Frank R. 2005. The Politics of Attention. Chicago, IL: University of Chicago Press.Google Scholar
Kaiser Family Foundation. 2012. Health Care Costs: Key Information on Health Care Costs and Their Impact. http://kaiserfamilyfoundation.files.wordpress.com/2013/01/7670‐03.pdf (accessed February 26, 2014).Google Scholar
Kalb, Paul E., Bass, I. Scott, and Fabrikant, Robert 2001. The Average Wholesale Price: It “Ain't What the Government Wants to Pay.” Health Care Fraud Report, February 21, 182.Google Scholar
Katzenstein, Mary 1998. Faithful and Fearless. Princeton, NJ: Princeton University Press.Google Scholar
Koch, Kathleen 1999. Gun Litigation Follows Example of Tobacco Cases. June 6. http://edition.cnn.com/US/9906/06/guns.tobacco/ (accessed February 26, 2014).Google Scholar
Koenig, Thomas H., and Rustad, Michael L. 1998. “Crimtorts” as Corporate Just Deserts. University of Michigan Journal of Law Reform 31:289–352.Google Scholar
Krause, Joan H. 2003. A Conceptual Model of Health Care Fraud Enforcement. Journal of Law and Policy 12 (1):55–147.Google Scholar
Lewis, Eugene 1980. Public Entrepreneurship. Bloomington, IN: Indiana University Press.Google Scholar
Lifsher, Marc, and Lazo, Alejandro 2012. State OKs Mortgage Protections. Los Angeles Times, July 3, A1.Google Scholar
March, James G., and Olsen, Johan P., eds. 1979. Ambiguity and Choice in Organizations. Bergen, Norway: Universitetsforlaget.Google Scholar
Mather, Lynn 1998. Theorizing About Trial Courts: Lawyers, Policymaking, and Tobacco Litigation. Law & Social Inquiry 23 (4): 897–940.Google Scholar
McCann, Michael 1994. Rights at Work. Chicago, IL: University of Chicago Press.Google Scholar
McCann, Michael 2006. Law and Social Movements. Annual Review of Political Science 2:17–38.Google Scholar
McCann, Michael 2008. Litigation and Legal Mobilization. In The Oxford Handbook of Law and Politics, ed. Whittington, Keith E., Kelemen, R. Daniel, and Caldeira, Gregory A., 522–540. New York: Oxford University Press.Google Scholar
McCann, Michael, Haltom, William, and Fisher, Shauna 2013. Criminalizing Big Tobacco: Legal Mobilization and the Politics of Responsibility for Health Risks in the United States. Law & Social Inquiry 38 (2): 288–321.Google Scholar
Meyer, David S., and Boutcher, Steven A. 2007. Signals and Spillover: Brown v. Board of Education and Other Social Movements. Perspectives on Politics 5 (1): 81–93.Google Scholar
Minkoff, Debra C. 1997. The Sequencing of Social Movements. American Sociological Review 62:779–799.Google Scholar
Mnookin, Robert H., and Kornhauser, Lewis 1979. Bargaining in the Shadow of the Law: The Case of Divorce. Yale Law Review 88 (5): 950–997.Google Scholar
Mulroy, Quinn 2012. Public Litigation Through Private Litigation: The Regulatory Power of Private Lawsuits and the American Bureaucracy. PhD diss., Columbia University. ProQuest (3489457).Google Scholar
NeJaime, Douglas 2012. Cause Lawyers Inside the State. Fordham Law Review 81 (2): 649–704.Google Scholar
Office of the Attorney General of Louisiana. 2012. Attorney General Recovers $38 Million from Drug Companies Charged with Fraud. July 25. http://www.ag.state.la.us/Article.aspx?articleID=611&catID=2 (accessed February 26, 2014).Google Scholar
Osborn, John 2013. Feds Have Beaten Pharma into Submission Over Off‐Label Drug Costs, But at What Cost? Forbes, November 7. http://www.forbes.com/sites/johnosborn/2013/11/07/ho‐hum‐another‐multi‐billion‐dollar‐drug‐company‐fraud‐settlement/ (accessed February 26, 2014).Google Scholar
Pagano, Susanne 2009. Merck, Schering‐Plough Settle with States Over Vytorin Study Release. Pharmaceutical Law & Industry Report, July 17, 821.Google Scholar
Paris, Michael 2010. Framing Equal Opportunity. Stanford, CA: Stanford University Press.Google Scholar
Pear, Robert 2001. Bayer to Pay $14 Million to Settle Charges of Causing Inflated Medicaid Claims. New York Times, January 24, A16.Google Scholar
Pear, Robert 2002. AARP Wants Bigger Role in Prescription Drug Cases. New York Times, April 23, A14.Google Scholar
Pharmaceutical Law & Industry Report. 2001. TAP Settlement Redefining Marketing, Relationships Between Drug Firms, Doctors. Pharmaceutical Law & Industry Report, December 13.Google Scholar
Pharmaceutical Law & Industry Report. 2003. House Committee Questions Drugmakers in Expanded Medicaid Fraud Investigation. Pharmaceutical Law & Industry Report, July 4.Google Scholar
Pharmaceutical Law & Industry Report. 2004a. Grassley Asks DOJ for Confidential Information from Medicaid Investigations. Pharmaceutical Law & Industry Report, May 28.Google Scholar
Pharmaceutical Law & Industry Report. 2004b. Pfizer Unit Pays $430 Million to Settle Neurontin Off‐Label, Medicaid Claims. Pharmaceutical Law & Industry Report, May 14.Google Scholar
Pharmaceutical Law & Industry Report. 2007. International Pharma Trade Group Adopts New Code Barring Some Marketing Activities. Pharmaceutical Law & Industry Report, January 5.Google Scholar
Prescription Access Litigation. n.d. PAL Coalition. http://web.archive.org/web/20130430105917/http://www.prescriptionaccess.org/lawsuitssettlements?id=0005 (accessed February 26, 2014).Google Scholar
Radley, David C., Finkelstein, Stan N., and Stafford, Randall S. 2006. Off‐Label Prescribing Among Office‐Based Physicians. Archives of Internal Medicine 166 (9): 1021–1026.Google Scholar
Raeburn, Nicole C. 2004. Changing Corporate America from the Inside Out. Minneapolis, MN: University of Minnesota Press.Google Scholar
Reckard, E. Scott 2013. New U.S. Rules for Lenders; Agency to Require Mortgage Servicers to Offer All Options to Keep People in Homes. Los Angeles Times, January 16, B1.Google Scholar
Rosenberg, Gerald 2008. The Hollow Hope. Chicago, IL: University of Chicago Press.Google Scholar
Sarat, Austin, and Kearns, Thomas R., eds. 1993. Law in Everyday Life. Ann Arbor, MI: University of Michigan Press.Google Scholar
Sarat, Austin, and Scheingold, Stuart 1998. Cause Lawyering. New York: Oxford University Press.Google Scholar
Sarat, Austin, and Scheingold, Stuart 2006. Cause Lawyers and Social Movements. Stanford, CA: Stanford University Press.Google Scholar
Schattschneider, E. E. 1960. The Semi‐Sovereign People. New York: Holt, Rinehart, and Winston.Google Scholar
Simon, Jonathan 2007. Governing Through Crime. New York: Oxford University Press.Google Scholar
Sinclair, Barbara 2011. Unorthodox Lawmaking, 4th ed. Washington, DC: CQ Press.Google Scholar
Spears, James M., and Pullman, Jeff 2002. Using Litigation to Regulate Drug Prices: The Assault. Medical Marketing and Media, June, 70–76.Google Scholar
Stout, David, and Perez‐Pena, Richard 1999. Housing Agencies to Sue Gun Makers. New York Times, December 8, A1.Google Scholar
Tushnet, Mark 2005. The NAACP's Legal Strategy Against Segregated Education, 1925–1950, 2nd ed. Chapel Hill, NC: University of North Carolina Press.Google Scholar
Tyler, Patrick E. 1999. Tobacco‐Busting Lawyers on New Gold‐Dusted Trails. New York Times, March 10, A1.Google Scholar
Violence Policy Center. n.d. Litigation Against the Gun Industry. http://www.vpc.org/litigate.htm (accessed February 26, 2014).Google Scholar
Walsh, Sharon 1999. Gunmakers Up in Arms Over HUD Plan to Sue Them. Washington Post, December 9, A2.Google Scholar
Waltenburg, Eric N., and Swinford, Bill 1999. Litigating Federalism. Westport, CT: Greenwood Press.Google Scholar
Zalesky, Christopher D. 2006. Pharmaceutical Marketing Practices: Balancing Public Health and Law Enforcement Interests. Journal of Health Law 39 (2): 235–264.Google Scholar
Zemans, Frances K. 1983. Legal Mobilization: The Neglected Role of the Law in the Political System. American Political Science Review 77 (3): 690–703.Google Scholar

Cases and Legal Documents

Ameriquest Multistate Settlement Agreement. 2006. Signed January 23. http://www.ameriquestmultistatesettlement.com/pdfs/SettlementAgreement.pdf (accessed February 26, 2014).Google Scholar
Ameriquest Settlement Agreement. 2009. In re Ameriquest Mortgage Co. Mortgage Lending Practices Litig., MDL No. 1715, signed December 4. https://ameriquestmdlsettlement.com (Site no longer active, document available from author).Google Scholar
AT&T Mobility v. Concepcion, 563 U.S. 321 (2011).Google Scholar
Bayer Corporate Integrity Agreement. 2001. Signed January 23. http://www.oig.hhs.gov/fraud/cia/agreements/BayerCorporation120301.PDF (accessed February 26, 2014).Google Scholar
Brown v. Board of Educ., 347 U.S. 483 (1954).Google Scholar
City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136 (Ohio 2002).Google Scholar
Complaint, In re Pharm. Indus. Average Wholesale Price Litig., 2004. M.D.L. No. 1456, filed February 24 (document available from author).Google Scholar
Countrywide Stipulated Judgment and Injunction. 2008. Signed October 20. http://ag.ca.gov/cms_attachments/press/pdfs/n1618_cw_judgment.pdf (accessed February 26, 2014).Google Scholar
Hamilton v. Accu‐Tek, 62 F. Supp. 2d 802 (E.D.N.Y. 1999).Google Scholar
Household Finance Consent Judgment. 2002. Signed December 11. http://www.state.ia.us/government/ag/latest_news/releases/dec_2002/hhconsent.pdf (accessed February 26, 2014).Google Scholar
In re Pharm. Indus. Average Wholesale Price Litig., M.D.L. No. 1456 (D. Mass, June 21, 2007).Google Scholar
Morial v. Smith & Wesson Corp., No. 98‐18578 (La. Civ. Dist. Ct., Orleans Parish) (filed October 30, 1998).Google Scholar
National Foreclosure Consent Judgment. 2012. Filed April 4. http://www.nationalmortgagesettlement.com (accessed February 26, 2014).Google Scholar
Smith & Wesson Settlement. 2000. Signed March 17. http://www.nraila.org/news‐issues/fact‐sheets/2000/smith‐wesson‐settlement‐agreement.aspx (accessed February 26, 2014).Google Scholar
TAP Corporate Integrity Agreement. 2001. Signed September 28. https://oig.hhs.gov/fraud/cia/agreements/tap_pharmaceutical_products_92801.pdf (accessed February 26, 2014).Google Scholar
Wal‐Mart v. Dukes, 564 U.S. 277 (2011).Google Scholar

Statutes and Congressional Hearings

Balanced Budget Act of 1997, Public Law 105‐33, 11 Stat. 251.Google Scholar
Class Action Fairness Act of 2005, Public Law 109‐2, 199 Stat. 4.Google Scholar
Food and Drug Modernization Act of 1997, Public Law 105‐115, 111 Stat. 2330.Google Scholar
International Prescription Drug Parity Act of 1999, H.R. 1885, 106th Cong. (introduced May 20).Google Scholar
Medicaid Prescription Drug Reimbursement: Why the Government Pays Too Much, 2004. Joint Hearing Before the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce, 108th Cong., December 7.Google Scholar
Medicare Drug Reimbursements: A Broken System for Patients and Taxpayers, 2001. Joint Hearing Before the Subcommittee on Health and the Subcommittee on Oversight and Investigations, 107th Cong. 65, September 21.Google Scholar
Medicare, Medicaid and SCHIP Benefits Improvement and Protection Act of 2000, Public Law 106‐554.Google Scholar
Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Public Law 108‐173, 94 Stat. 2647.Google Scholar
Medication Price Control Act of 1991, H.R. 3823, 102d Cong. (introduced November 19).Google Scholar
Prescription Drug Cost Containment Act of 1992, H.R. 4490, 102d Cong. (introduced March 18).Google Scholar
Protection of Lawful Commerce in Arms Act of 2005, Public Law 109‐92.Google Scholar