Chapter 10 examines the recent mass tort litigation pursued on public nuisance grounds and modeled after the succesful opioid public nuisance litigation. After the 1999 Master Settlement Agreement with the tobacco company defendants, the tobacco companies ceased marketing cigarettes and tobacco products; cigarette smoking dropped precipitously thoughout the United States. In 2006 JUUL introduced e-cigarette vaping products and marketed these extensively to school-aged youth. This marketing program resulted in massive e-cigarette use by students, which precipitated a crisis among school districts and muncipalities having to deal with vaping in schools. Plaintiffs attorneys, allied with school districts and muncipalities, instituted massive litigation throughout the country. Modeled on the opioid litigation, federal e-cigarette litigation was consoldated in an MDL in the Northern District of California. This chapter chronicles the development and resolution of the e-cigarette public nuisance litigation, resulting in one bellwether trial and ultimately numerous settelements with JUUL and Altria, extending through 2023. The case study illustrates that a public nuisance claim may induce defendants to settle.

I have recently retired from the United States Supreme Court. It’s true that as a justice, I had life tenure, but I wanted time to reflect on the cases I had decided during my long career on the bench. And, so I am sorting through old notes, correspondence, drafts, and opinions to make sense of my jurisprudential legacy, such as it is. The process has made me feel a bit like Jorge Luis Borges in “The Other,” when as an old man, he unexpectedly meets a younger version of himself. The elder Borges realizes that the distance between him and his youthful doppelganger is not just chronological but psychological and philosophical – and, more importantly, utterly unbridgeable. Jorge Luis Borges, The Book of Sand 11 (1977). As I sift through my records, I have similar encounters with myself as a fledgling jurist. I was confident then that I had done everything possible to achieve just results in every case. Now, I look back and realize that I made some irretrievable mistakes, though all in good faith. They are oversights that I am able to appreciate only in hindsight, though that does not mean I feel any less regret.