‘TIL NAUGHT BUT ASH IS LEFT TO SEE’: STATEWIDE SMOKING BANS, BALLOT INITIATIVES, AND THE PUBLIC SPHERE

Abstract

This Article examines the recent surge in statewide smoking bans. Nearly all states have some form of statewide ETS legislation, and the last five years have seen a revolution in the legal landscape, reversing the default rule on smoking in public from permissive to prohibitive of smoking. After establishing an analytical framework within which statewide ETS legislation coheres, and a typology of statewide smoking bans, this Article examines a disturbing trend in statewide ETS legislation: the increasing use of statewide ballot initiatives. After examining the shortcomings of direct legislation in the context of ETS legislation, this Article proposes a balancing test for remedial use by legislators, and demonstrates its application to an exemption area on which states divide: the tobacco lounge.