Daniel Aaron, ‘Opioid Accountability’

ABSTRACT
The opioid crisis has steadily killed Americans for twenty years. In total, we have lost 450,000 American lives since the 1990s, and countless more suffer from chronic addiction.

After years of piecemeal efforts to address this massive loss of life and health, the opioid litigation, largely centralized in Ohio federal district court, has brought significant hope for change. But there is a notable divide between the popular sense of the litigation and its reality. A full 57% of Americans believe that opioid companies should be held accountable for precipitating a public health crisis. However, the litigation has been dedicated to rapid monetary settlement, and scholars have generally been hostile to corporate accountability.

This paper, together with its companion piece, seeks to resurrect the idea of tort accountability. The US has experienced several opioid crises over the last 150 years, yet we have never held opioid corporations accountable. Meanwhile, it is fairly standard in other areas of law, such as administrative law, to hold an agency accountable for legal violations. This paper articulates a double standard between tort and administrative law and makes a strong call for corporate accountability in tort. Accountability is a form of ex post incentive-based liability, which has potent ex ante effects on actors choosing how to market dangerous products. Accountability has the power to change incentive structures and to support the rule of law. If we hope to prevent recurrence of mass harms, we must hold the actors who perpetrate them accountable. Current proposals to hold only agencies accountable for the opioid crisis risk kneecapping regulators and further liberating defendant companies from essential public health regulations. Instead, we must embrace corporate accountability in tort as a necessary check on corporate power. Beyond accountability, this paper makes several suggestions to maximize the public health benefits of the opioid litigation.

Aaron, Daniel, Opioid Accountability (Aug 15, 2020). Tennessee Law Review (forthcoming 2022).

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