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16.5: Some Principles of Public Law

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  • Learning Objectives

    1. Explain the difference between private law and public law.
    2. Define statutory law and give examples of statutory laws at various governmental levels.
    3. Explain externalities and show why taxation is used as a means of addressing them.
    4. Discuss the idea of market failure and the principle of efficiency as a foundation of law.
    5. Define administrative law and discuss the role of federal administrative agencies in making and enforcing administrative laws.
    6. Define case law and explain the concepts of precedent and judicial review.

    Both tort law and contract law fall into the larger domain of private law, which deals with private relationships among individuals and organizations. In addition, of course, there are numerous types of law that deal with the relationship of government to private individuals and other private entities, including businesses. This is the area of public law, which falls into three general categories (Kubasek, 2009):

    • Criminal law, which we’ve already introduced, prohibits and punishes wrongful conduct.
    • Constitutional law concerns the laws and basic legal principles set forth by the U.S. Constitution.
    • Administrative law refers to statutes and regulations related to the activities of certain legal bodies known as administrative agencies. We’ll have more to say about administrative agencies and administrative law later in the chapter.

    Public law obviously has a major impact on the activities of both individuals and businesses in the United States, and in the following section, we’ll discuss the nature of this impact and the reasons why so many private activities are subject to the rules and principles of public law. Like most areas of the law, public law is an extremely complex field of study, and to keep things manageable we’re going to explore this field by focusing on three less-than-glamorous legal issues: why cigarette littering is against the law, why cigarettes cost so much, and why businesses ban smoking in the workplace.

    Why Cigarette Littering Is against the Law

    Having sold the Stratford Inn in 1991, former senator George McGovern didn’t have to worry about the Connecticut Clean Indoor Air Act of 2004, which banned smoking in such places as the bar of his hotel (Spigel, 2011). Like similar statutes in many states, the Connecticut law was enacted in response to the health hazards of secondary smoke in closed environments (an estimated three thousand nonsmokers die from smoke-related lung cancer every year).

    Interestingly, shortly after the new statewide antismoking law went into effect, officials in Connecticut noticed a curious phenomenon: cigarette litter—packaging, lighting materials, and, especially, butts—had begun to accumulate at an unprecedented rate in outdoor areas surrounding drinking establishments, exacerbating an already serious environmental problem. Unless you’ve lived your entire life indoors, you have undoubtedly noticed that cigarette butts are a fixture of the great American outdoors: Americans smoke about 360 billion cigarettes a year and discard 135 million pounds of butts, much of which ends up as litter (Cigarette Butt Litter, 2008). In fact, cigarettes account for 20 percent of all the litter in the United States, 18 percent of which ends up in local streams and other waterways.

    Figure 16.7


    Cigarettes account for 20 percent of all litter.

    waferboard – field of dreams – CC BY 2.0.

    In 2006, U.S. Senator Joseph Lieberman of Connecticut introduced the Cigarette Litter Prevention Act, a federal statute that would require cigarette producers to attach environmental warnings to their packaging (Liebermann Lands Legislation…, 2006). In Connecticut itself, however, statewide antilittering law covers only state property, land, and waters (Frisman, 2008). When it comes to private property, such as most areas adjacent to restaurants and bars, it’s left to local communities to police littering violations. The town council of Wallingford, for example, recently took action on a proposed ordinance to fine business owners who fail to clean up the litter on their doorsteps and in their parking lots. The law also targets proprietors who continue to sweep cigarette and other litter into storm drains—a major source of waterway pollution. “I’m not a big fan of making laws to do stuff like this,” admitted one town councilor, “but if people don’t do it, then they have to be told to do it” (The Record-Journal, 2008).

    The Wallingford ordinance calls for a written warning followed by a fine of $90 for each day that the offending litter isn’t removed. Connecticut state law carries a maximum fine of $199 plus a surcharge of half the fine. As for litter “thrown, blown, scattered, or spilled” from a motor vehicle, Connecticut law regards it as evidence that the driver has in fact littered, but the statute applies only to state land and waters. The issue of litterbug drivers, however, is a much bigger concern to lawmakers in certain other states. In California, for example, Vehicle Code Section 23111 states that “no person in any vehicle and no pedestrian shall throw or discharge from or upon any road or highway or adjoining area, public or private, any lighted or nonlighted cigarette, cigar, match, or any flaming or glowing substance.” The statute carries a fine of $380 but could run as high as $1,000. In addition, you may spend eight hours picking up roadside trash, and because the violation goes on your driving record, your insurance premiums may increase (California Department of Motor Vehicles, 2007). Despite such vigorous preventive measures, the state of California spends $62 million a year of the taxpayers’ money to clean up roadside litter (Green Eco Services, 2008).

    Besides the cleanup cost, there’s another reason why California law regarding motor vehicles and cigarette litter is so stiff: at certain times of the year and under certain conditions, much of the state is a tinderbox. In January 2001, for example, a cigarette tossed from a car onto a grassy highway median near San Diego sparked a brush fire that soon spread across eleven thousand acres of rural forestland. As columns of acrid, ash-filled smoked billowed some thirty thousand feet into the air, officials closed down a twelve-mile stretch of Interstate highway and evacuated 350 homes. Suffering from eye, nose, and lung irritation, hundreds of residents rushed to safety with no time to rescue personal possessions, and before an army of two thousand federal, state, and local emergency workers had contained the blaze a week later, the firefighting effort had cost California taxpayers $10 million (, 2001;, 2001;, 2001).

    Statutory Responses to Littering

    Clearly the problem of cigarette litter has attracted the attention of lawmakers at every level. All the laws that we mentioned in this section are current or proposed statutory laws—laws made by legislative bodies. Enacted by the Connecticut General Assembly, the Clean Indoor Air Act of 2004 and Littering Law (amended 2005) are state statutes, as is California’s Vehicle Code, which was enacted by the California State Legislature. The antilittering law in Wallingford is a local law, or municipal ordinance, passed by the Town Council, whose authority derives from the state General Assembly. If Senator’s Lieberman’s proposed Cigarette Litter Prevention Act is passed by the U.S. Congress, it will become a federal statute. Note, by the way, that each of these laws is a criminal statute designed to prohibit and punish wrongful conduct (usually by fine).