Virtually everyone who follows government and politics is familiar with new House Speaker Nancy Pelosi, D-Calif. Many know that one of her priorities early in the 110th Congress was passing legislation that affects the government’s ability to negotiate prescription drug prices, and on Jan. 12, the House passed such a bill. Far fewer of us, however, are familiar with Steve Berman of Seattle-based Hagens Berman Sobol Shapiro. But litigation initiated by Berman’s firm in federal court in Massachusetts may play a greater role in establishing drug prices than any law the new Congress may ultimately enact.
If prices for prescription medicines are to be dictated through private litigation rather than public processes, our system of constitutional government, in which legislators and executives accountable to the public write laws and judges apply those laws to resolve disputes, will suffer badly. Such “regulation through litigation” is undemocratic; it disadvantages individuals and organizations not party to the litigation; and it creates incentives that have less to do with sound policy outcomes and more to do with the pursuit of high legal fees.
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