PRETRIAL bargaining may be described as a game played in the shadow of the law. There are two possible outcomes: settlement out of court through bargaining, and trial, which represents a bargaining breakdown. The courts encourage private bargaining but stand ready to step from the shadows and resolve the dispute by coercion if the parties cannot agree. Bargaining is successful from an economic viewpoint if an efficient solution to the dispute is found at little cost. In technical language, a dispute is resolved successfully if a solution is found on the contract curve with little expenditure on search. The usual approach to bargaining in the legal setting assumes that trial is caused by excessive optimism on the part of plaintiff and defendant. ' If both parties are optimistic, then there is no way to split the stakes so that each receives as much as he or she expects to gain from trial. In these circumstances, trial is inevitable.
The economic and public health impacts of tobacco use, which kills approximately 5 million people per year and is expected to kill 10 million, mainly poor, people in 2030, are well known. Less attention has been paid to the impact of this epidemic on human rights and the potential application of a human rights perspective to tobacco control. This article examines the emerging human right to tobacco control in relation to other efforts to reduce the death and disability resulting from the activities of the tobacco industry, such as the Framework Convention on Tobacco Control, and suggests ways of implementing human rights mechanisms to address this public health disaster.
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