Patrick Kabat


The new millennium has witnessed a quiet revolution in smoking regulation. Legislation targeting secondhand smoke-formally known as Environmental Tobacco Smoke (ETS)-has erupted across the country in a majority of American states and countless municipalities. In the last five years, thirty-one states have passed comprehensive ETS regimes. In 2008 alone, Iowa, Nebraska, and Pennsylvania passed statewide smoking bans, Indiana debated and rejected one, the Illinois ETS statute took effect, and the Ohio Department of Health was dragged by advocacy groups through the full range of Ohio courts as it sought to implement the state's recent ban. Major ETS legislation is pending in South Dakota, substantial exemption revisions are pending in Ohio, and in the next few years, more restrictive provisions of several states' laws will kick in. These regimes are rapidly transforming the public domain from predominantly smokefriendly to presumptively smoke-free.

It is high time to take stock of these developments, both to understand how the legal landscape is changing and to ensure that it develops responsibly. As this Note proposes, American states have been-and continue to be-engaged in the process of reversing the default rule on smoking in public from permissive to prohibitive. Whereas smoking was previously permitted in public, save for designated "No Smoking" areas, we increasingly live in a country where insular smoking spaces are carved out of a public domain in which smoking is generally forbidden.