In this paper, forthcoming in the Virginia Law Review, I explore the role of litigation as a policy-making and rule-generating process in the context of a democratic republic. In democracies, legislatures redistribute wealth, rights, and privileges; debate rages over the direction of this redistribution and its desirability, but not about its existence. Given the openness of the legislature to redistribution, should a society also dedicate its judicial system to revising existing legal arrangements? Do particular kinds of redistributive litigation raise distinct concerns that justify doctrinal innovation and extension? The emergence of large, government-sponsored lawsuits as a means of imposing sanctions on controversial, but heretofore authorized practices, such as the manufacture and sale of cigarettes and firearms, indicates the significance of these issues, as do recent developments in international arbitration. I argue that the creation of some obstacles to such litigation is justified, but only to the extent that the institutional features of such litigation expose outsiders to exceptional risks.

Paul B. Stephan, Redistributive Litigation—Judicial Innovation, Private Expectations, and the Shadow of International Law, 88 Virginia Law Review, 789–878 (2002).