The suit, based on lead paint exposure among children, is akin to proceedings launched more than a year ago by the State of Rhode Island. Part Two now begins. Law students know that under the common law of torts only direct victims can sue wrongdoers, except in one case. Recoupment litigation uses tort law, which is a private common law mechanism of corrective justice arising from one person's wrongful harm to another, to achieve taxation, which is a public allocation of social costs. But taxation, like all public law, requires a distinctive legislative process.
Recoupment litigation is taxation without legislation.
Governments have, for several reasons, no right of action in tort to recover social expenditures associated with high blood lead levels. To see this, let's look more closely at the claim that Oakland and San Francisco are somehow suing as insurers on behalf of injured children. If this were the case, the cities' suit would be no stronger than would be the children's tort action against paint manufacturers. Small wonder that the cities have not asked for, obtained, or even claimed the right to sue as insurers. This is why Oakland and San Francisco declined to sue in the children's place.