Professor Alex Lemann Examines the Opioid Litigation’s Implications for Tort Theory
The opioid crisis has spurred some of the most significant litigation in recent history, yet the intersection of these cases with tort theory has remained largely unexplored—until now. In his latest article, The Opioid Litigation’s Challenge for Tort Theory, Marquette University Law School Professor Alex Lemann examines how courts have adapted legal doctrines to address opioid-related harms, challenging scholars and practitioners to rethink the boundaries of tort law.
“The opioid crisis has led to massive litigation, but there hasn’t been as much discussion about how these cases interact with the fundamental theories of tort law,” said Lemann. “I wanted to address that in a way that would be useful for other scholars and practitioners.” His work explores why individual plaintiffs seeking redress for opioid-related harms largely failed in court, while municipal plaintiffs, such as cities and counties, found success—often securing billions of dollars in settlements. This pattern raises critical questions about the effectiveness and theoretical foundations of tort law in addressing widespread public health crises.
Lemann’s research highlights the tension between two major schools of tort theory: utilitarianism (which focuses on providing a “good” outcome for society) and deontology (which focuses on the moral duty to follow rules regardless of outcome). From a utilitarian perspective, public nuisance cases against opioid manufacturers may promote social welfare by holding the industry accountable and encouraging safer practices. However, the failure of individual lawsuits challenges this framework. Conversely, deontological principles—focusing on autonomy, fault, and moral responsibility—seem to align with the rejection of individual claims yet struggle to justify the expansive liability imposed in municipal cases. Lemann’s analysis suggests that opioid litigation presents a significant challenge to both views, demanding a reassessment of how tort law functions in large-scale harm scenarios.
Beyond his scholarship, Professor Lemann is a dedicated teacher and winner of the 2021 James D. Ghiardi Award for Teaching Excellence. Since joining Marquette Law School in 2017, he has focused on tort law, insurance, and legal responses to risk. Before academia, he practiced law as a litigator at Sullivan & Cromwell in New York and clerked for two federal judges.
Professor Lemann’s latest article offers an essential contribution to the ongoing conversation about opioid litigation and tort theory. Read more about his research here.