Introduction Although Alvin Laskin grew plants for a living, no one would ever accuse him of being an environmentalist. Yet Laskin's entrepreneurial efforts managed to create employment for many environmental scientists—and hundreds of lawyers.
In the early 1970s, when Laskin's Ohio nursery business slumped, he found a more lucrative trade: used oil. Laskin bought the oil from factories and sold it for a variety of uses, particularly dust control. Most of Laskin's old oil presumably ended up with his customers, but hundreds of thousands of gallons of the stuff were inadequately stored in corroded tanks and ponds. By the late 1970s, when Ohio officials first investigated the Laskin Poplar storage site, a chemical sludge containing lead, dioxin, and PCBs had leached into the soil and threatened the groundwater.1 An extensive cleanup was required, eventually costing about $32 million.2
The Environmental Protection Agency, which administered the cleanup, would have been happy to bill Mr. Laskin, but he was "judgment proof"—too poor to make it worth going after him. So instead the EPA sued seven of Mr. Laskin's largest customers, big corporations who had either bought or sold the waste oil.
That was just the beginning. The seven corporations decided to sue Laskin's other customers, eventually more than six hundred, to help pay for the bills. The federal government became involved in these lawsuits as a third party. Then the big companies sued each other. Later some of the companies sued their insurers. At one point the disputants literally ran out of lawyers in the Cleveland area to handle all these suits and countersuits.3
It took five years for the first group of defendants to settle, and four more years for most of the rest.4 In 2001, seventeen years after the first lawsuit, lawyers were still battling over who would pay for Alvin Laskin's environmental sins.5
Litigious People/Litigious Policies Stories like this, about litigation seemingly run amok, are common in American popular culture. Anyone who regularly reads a newspaper or watches television has heard, for example, the story of Stella Liebeck, the woman who sued McDonald's after she burned herself with its coffee.6 Through the media we encounter despondent New Yorkers who jump in front of subways and sue for their injuries, students who sue their professors for bad teaching, parents who sue because their toddlers came to blows on a playground, golfers who sue after being hit by errant tee shots, nonprofit agencies that sue to collect from wavering donors, snackers who sue when their overcooked Pop-Tarts catch fire, prisoners who sue to get chunky peanut butter instead of the smooth kind, game show contestants who sue over a disputed question, and overweight people who sue movie theaters because their chairs aren't sufficiently spacious.7 There are also "urban legends" that radiate out from the media with ever more outrageous (and almost entirely fanciful) claims, of handymen who sue after their ladders slip on cow manure, restaurant customers who collect thousands of dollars after eating "Kentucky Fried Rat," and psychics who assert that CAT scans withered their powers and receive hundreds of thousands for their troubles.8
These are not simply amusing vignettes. Although they appear in the media as unconnected anecdotes, a serious theme underlies these stories. They are parables about a fundamental breakdown in American society. The prerequisites for peaceful community life, the stories suggest, have evaporated. Greed, individualism, and contentiousness are winning out over, as one book puts it, "common sense."9 This theme is so readily accepted that such stories resonate even when demonstrably false. Meanwhile, careful academic research that debunks the notion of a "litigation explosion" in the United States fails to make much of an impression.10 Nearly everyone, a few lawyers and legal academics to the contrary, seems to believe that litigation is out of control.
Explanations for litigiousness are eagerly pronounced. Many blame greedy lawyers, always an easy target.11 Others point to changes in American culture with its growing emphasis on individual rights and neglect of the common good. Americans, it is said, have become whiny victims who sue at the first opportunity.12 These explanations share a common feature: they focus on the individual's decision to sue. From this perspective the problem is that Americans have chosen to litigate rather than tolerate their discomforts or settle their disputes amicably. The communal spirit and stoic temper that once kept Americans out of court have withered. Americans, this perspective suggests, have become a litigious people.
It seems a persuasive view. Yet though the anecdotes that punctuate this narrative of cultural decline are vivid, the evidence to support it is surprisingly scarce. Research typically shows Americans rarely take their disputes to court. Of every one hundred Americans injured in an accident, only ten make a liability claim, and only two file a lawsuit.13 Of every one hundred Americans who believe they have lost more than $1,000 because of someone else's illegal conduct, only five file a suit.14 When medical malpractice results in serious injury, only one of eight victims makes a claim.15 Far from a nation of litigators, the United States seems to be filled with "lumpers," people inclined to lump their grievances rather than press them. Further, claims of a "litigation explosion" are overblown; indeed some studies suggest that those supposedly stoic pioneers of frontier America were far more inclined to sue than their allegedly litigation-loving descendants.16 Nor do Americans today seem much more litigious than citizens of other nations, though comparisons are difficult and the data skimpy. Some researchers even believe that Americans are no more innately lawsuit prone than the Japanese, the supposed saints of nonlitigiousness.17
If all this is true, one might ask, why is there so much complaining about litigation in American life? How can the image of sue-crazy Americans creating a litigation explosion be so far removed from the reality?
Part of the answer is that there is a dedicated corps of image-makers, business interests that have conjured a litigation "crisis" for their own political ends. As several researchers have shown, these interests have mounted a self-serving attack on one form of litigation, personal injury lawsuits, that has succeeded in convincing Americans of their society's descent into the wickedness of litigiousness.18
But this, I believe, is only part of the story. Complaints about the place of litigation in American life are not, in fact, merely the artifact of the conjurers' skills, the residue of a cultural con job. For while there is little evidence that Americans are more sue happy than citizens of other nations or that there has been an "explosion" in personal injury lawsuits, litigation clearly does have a distinctively important role in American life. As sensational and unrepresentative as the litigation horror stories are, they do reveal one important truth: the range of matters that can be litigated in the United States is broader than in other nations and growing each year. Forms of litigation that are unknown elsewhere have in the United States become significant avenues for political controversy and even social change. Although the aforementioned prisoners who sued for chunky peanut butter rather than the smooth kind were undoubtedly laughed out of court, the important fact that remains is that it is imaginable in the United States for a prisoner to bring such a lawsuit. Indeed, prisoners with far more serious claims have been able, with the help of sympathetic federal judges, to reshape many aspects of the penal system in the United States.19 Prisons, schools, playgrounds, game shows, even churches: there are few "litigation-free" zones in twenty-first-century American life, domains in which no lawsuit can be brought. And on this point it's clear that the United States is different. From coal mines to high schools, administrative decision making to workplace regulation, comparative research has shown that the United States relies more than any other nation on lawyers, rights, and courts to address social issues.20 Although there are exceptions to this generalization and though courts and litigation are a growing part of public policy in many nations, the American pattern still stands out.21
In castigating Americans for being too individualistic and sue crazy, commentators have themselves committed the sin of methodological individualism: focusing on individual behavior while downplaying the significance of social structures.22 The evidence that individual Americans have a greater lust for litigation than their counterparts in Japan is murky at best. The evidence that the United States, as compared to Japan, has adopted policies that encourage litigation is overwhelming.23 I take no position in the ongoing debate over the proclivities of individuals, whether in Japan or the United States, in the eighteenth century or the twenty-first. It is the comparison of institutional arrangements that arouses my interest. My focus, then, is on the litigiousness of American laws rather than on the purported litigiousness of the American people.
This book examines the causes of America's uniquely litigious public policy style. Litigious policies are laws that promote the use of litigation in resolving disputes and implementing public policies by (1) creating rights to sue, (2) lowering barriers to litigation, or (3) increasing the rewards of litigation.24 These policies produce an environment in which lawyers and legal concepts structure everyday practices and where the threat of a lawsuit always looms—even when, as is usually the case, no lawsuit is filed.
Without litigious policies there could be no anecdotes about the purported litigiousness of the American people. The parties in the Laskin Poplar oil-dumping case, for example, would have been powerless to sue if not for the "Superfund" law, which was devised by Congress in 1980. The Superfund law commits the federal government to fund a large share of the cost of toxic dump cleanups through litigation against polluters. In addition, Superfund allows the government to hold any individual or business implicated in the waste site liable for the entire cost of cleanup, whether or not the individual followed state and federal dumping laws and no matter when the waste was dumped. The law also allows "partly responsible parties" to sue each other so as to spread costs around. Thus Superfund created the legal structure that allowed the explosion of litigation in the Laskin case.
This structure did not, of course, ensure litigation. The parties could have worked out their differences without suing, as has been done in many Superfund cleanups.25 Yet the net effect of Superfund has been to make Superfund disputes a matter for lawyers and legal doctrine as well as engineers and engineering practices.
In toxic waste as in many policy realms, the American approach is distinctively litigious. Every industrialized nation has a problem with toxic dumps, but no other nation uses such a court-oriented solution. Some European nations hold polluters liable for cleanup only if their waste disposal methods were illegal when they did the dumping.26 Others promote the principle of "polluter pays" in all cases but grant the government only a limited power to enforce the principle.27 By contrast, the American approach, which grants the federal government powerful litigation rights and encourages "partly responsible parties" to sue each other, makes litigation a central aspect of disputes over toxic waste dumps.
But Superfund, like many litigious policies, is under attack. Researchers have long criticized Superfund for its litigiousness, and in recent years a plethora of groups have mobilized to reform or repeal it.28 In 1994 the Clinton administration created a Superfund reform plan aimed at reducing litigation in the program and assembled a grand coalition of manufacturers, insurers, and environmentalists in support of the plan. The administration's bill was beaten, however, by Republicans and business groups who wanted more radical change. Since then Congress and both the Clinton and George W. Bush administrations have continued to wrestle over how best to fix the Superfund liability scheme.29
The battle over the Superfund program is only one small part of what has become a widespread debate over litigious policies in the United States. In recent years business groups, journalists, academics, and politicians have attacked what they see as an excess of litigation in American life. George W. Bush in his 2000 campaign promised to be "a president who's tough enough to take on the trial bar" and, like Republican presidential candidates before him, including his father, criticized Democrats for cozying up to trial lawyers instead.30 Books like The Litigation Explosion and The Death of Common Sense: How Law Is Suffocating America have in recent years found a popular audience.31 Advertising by business groups suggests that excessive litigiousness is limiting access to doctors and closing down parks and playgrounds.32 The media dramatize the negative effects of litigation with an array of lawsuit horror stories and overwrought pronouncements.33 In television sitcoms such as Seinfeld, The Simpsons, and Ally McBeal overzealous lawyers and greedy litigants are portrayed pursuing outrageous claims. Meanwhile in academia, second thoughts about the use of litigation to promote social justice proliferate. Litigation is criticized as ineffective,34 costly,35 and divisive.36 Even among jurists there is "failing faith" in adjudication and greater attention to encouraging settlement and alternative means of resolving disputes.37
Antilitigation sentiment has rolled through the nation's legislatures, resulting in a profusion of bills designed to limit lawsuits. The movement for "tort reform," heavily funded by business groups and debated in every legislature in America, is the most prominent example. But tort reform is just part of the struggle. In areas as diverse as the environment, civil rights, crime, welfare, and family policy, litigiousness has become part of the political debate, and one group or another has pledged to reduce or limit it.
Antilitigation reformers, however, confront powerful forces in American culture and politics. It would seem that no crusade would be more popular, but in fact antilitigation campaigns have often met with strong resistance, and their record is decidedly mixed. Despite the exertions of a cavalcade of researchers, journalists, public relations specialists, and lobbyists—and despite the millions of dollars spent in their quest—most litigious policies remain in place. Moreover, for every successful effort to limit litigation, several new species of lawsuits seem to pop up nearly every day, some brought into the world by the very politicians who campaign against litigiousness.
If lawyers, litigants, and lawsuits are so regularly vilified in American culture and politics, why are litigious policies difficult to dislodge? Commentators often point to the machinations of politically powerful lawyers and to the seemingly inbred inclination of Americans to see social issues in terms of rights. There is some truth to both these answers, and later chapters explore them in some detail. But both fall well short of a full explanation.
The roots of America's litigious public policy style, I contend, lie much deeper. Building on the work of Robert Kagan,38 I locate these roots in fundamental features of the American constitutional tradition. This tradition, Kagan points out, combines a profound distrust of centralized governmental power with a set of structures—federalism, separation of powers, an independent judiciary—designed to tame that power. In this book I demonstrate how those structures induce litigious policy making and how they help resist antilitigation reforms. The constitutional tradition, I argue, creates powerful incentives for activists—those who favor governmental action on social problems—to implement their schemes through courts. Thus it takes powerful forces to reform litigious policies.
Litigious policies appeal to activists for two basic reasons. First, courts offer activists a way to address social problems without seeming to augment the power of the state. Litigious policies nicely match the preferences of Americans, who want action on social issues yet are ambivalent about the typical tools of the state—bureaucratic regulation and welfare programs. Courts and individual rights provide a promising alternative.
Second, litigious policies offer a means of overcoming the barriers to activist government posed by the structures of the Constitution. The Constitution's dispersion of power, to states and localities on one hand and to the branches of national government on the other, makes it difficult for activists to control the implementation of their schemes and easy for enemies to derail them. Courts offer a way around these problems. Courts can, for example, enforce national mandates against recalcitrant localities, thus mitigating the impact of federalism. Within the national government, courts can protect policies from "capture," a danger that separation of powers exacerbates. Through litigious policies, activists seek to surmount the fragmented, decentralized structure of American government, which (as its creators intended and James Madison famously boasted) makes activist government difficult. Attempts to limit litigation, then, run up against powerful motivations, rooted in the basic structure of the framers' handiwork. Thus those who despair at the prominence of litigation in American life would be well advised to stop blaming the Stella Liebecks of the world and focus instead on Mr. Madison and his compatriots. Their influence looms over the politics of litigation.
The Expansion of Litigious Policies In Democracy in America, Alexis de Tocqueville, the great French observer of American society, famously declared after traveling through the United States in the early 1830s that "there is hardly a political question in the United States that does not sooner or later turn into a judicial one."39 Tocqueville's statement contained an essential truth about American politics, particularly true in his day, when the absence of a strong national administration left courts as the primary regulators of the economy.40 Yet Tocqueville's observation was made in an age when the scope of American government—and thus of "political questions"—was relatively limited.
That is no longer the case. In the twentieth century, American government took on more and more of society's problems and conflicts. The growth of the federal government, punctuated by the New Deal, World War II, and the Great Society, is a well-known story. Less attention has been paid to a parallel growth in the responsibilities of courts, an expansion that has made Tocqueville's proclamation even more accurate today than when he wrote it. Beginning after World War II and accelerating in the 1960s and 1970s, courts and legislatures created new avenues of litigation across many realms of law and politics.
One of the first arenas in which this trend developed was tort law, the law of personal injury. In the first half of the twentieth century, tort law severely limited the ability of potential plaintiffs to be compensated for their injuries. Beginning in the 1940s a new emphasis on compensation and loss spreading developed. In 1952 the California Supreme Court for the first time allowed plaintiffs to recover for "intentional infliction of emotional distress," and over the next two decades the Court abolished the doctrines of charitable, familial, and governmental immunity.41
Those were just the first steps in a series of major changes in tort law. California Supreme Court judge Roger Traynor had urged in a famous 1944 case that manufacturers of products be strictly liable for injuries arising from the use of defective products. Plaintiffs, he argued, should not have to show that the manufacturer was negligent to collect damages. That suggestion was finally adopted in the 1960s in California, and it soon spread throughout the nation. One result of this change surfaced in 1968, when a federal court ruled that auto manufacturers were liable for injuries sustained in cars that inadequately protected passengers in a crash. Design defect cases have since become an important area of product liability law.
In the 1970s, in perhaps the biggest change of all, the California Supreme Court eliminated the contributory negligence rule, which had barred any recovery for plaintiffs partly responsible for their injuries. Instead the court substituted the "comparative negligence rule," instructing juries to reduce awards by the percentage that plaintiffs contributed to their injuries through their own negligence. Legislatures and courts in other states followed California's example. Meanwhile courts made it much easier for plaintiffs to sue in medical malpractice cases, eliminating defenses, creating new causes of action, and extending the statute of limitations. Changes in procedural rules made it easier to bring "mass torts" and class action lawsuits for injuries either proven or alleged to be caused by asbestos, Agent Orange, breast implants, diet pills, genetically modified foods, HMOs, even the Holocaust—as well as such lesser evils as defects in the Pentium computer chip.42 Enterprising plaintiff lawyers developed new theories of damages, and awards for "pain and suffering," loss of a family member, and punitive damages ballooned. As a result both the opportunities for and potential rewards of tort litigation have greatly increased.
A second source of litigation growth was the civil rights movement and the proliferation of antidiscrimination statutes that followed. Out of Brown v. Board of Education, the Supreme Court's 1954 ruling that segregation in public schools is unconstitutional, grew the notion that law could be used to transform society and achieve social justice. One of the crowning achievements of the civil rights movement, the Civil Rights Act of 1964, gave minorities the right to sue discriminating employers. That model—of giving victims of discrimination the right to bring lawsuits—has since been expanded to cover women, the aged, gays and lesbians, religious minorities, and people with disabilities and has inspired a panoply of civil rights laws at the national, state, and local levels. Alongside these statutory antidiscrimination rights, the Supreme Court expanded the bases for claims under the Constitution's Equal Protection Clause to include discrimination on the basis of sex and other attributes. Both constitutional and statutory antidiscrimination law has grown to govern more and more domains, from education and employment to law enforcement and public accommodations. With the Supreme Court's 1964 Baker v. Carr decision, holding that unequally sized voting districts could be challenged under the Constitution, and with Congress's passage of the 1965 Voting Rights Act, many aspects of the U.S. electoral system have also become subject to litigation.
As the range of civil rights laws has grown, so have the damages available to plaintiffs. While the Civil Rights Act of 1964 allowed successful plaintiffs to claim only back pay, reinstatement in their jobs, and attorney's fees, courts and legislatures have in many instances also granted punitive and pain-and-suffering damages, enlarging the potential rewards of litigation. The 1991 Civil Rights Act, for example, gave women, minorities, and disabled people the right to collect up to $300,000 in punitive and pain-and-suffering awards. Thus the potential rewards of civil rights litigation have continued to grow.
Civil rights law was one of many areas of constitutional litigation enlivened by the jurisprudence of the Earl Warren-led Supreme Court in the years 1953 to 1969. The Warren Court's emphasis on protecting the rights of minorities vastly increased the reach of First Amendment protections of religion, speech, press, and assembly.43 A new right of privacy was articulated by the Warren Court in 1965 and applied in 1973 by the Burger Court to abortion, one of the most controversial issues in American politics. Each of these expansions in constitutional law has created a new stream of litigation.
In terms of sheer volume, however, the Warren Court's criminal law cases have probably had the greatest impact. The Gideon v. Wainwright decision, for example, helped transform criminal law by giving every defendant, at least in theory, the ability to fully litigate his or her case. The Warren Court's expansion of habeas corpus rights similarly increased the ability of defendants to challenge the practices of police and of state courts through appeal to federal courts. Thus constitutional law became the means by which the abuses of local officials were regulated. The Court's rulings on the Fourth, Fifth and Sixth Amendments created new standards of criminal procedure—and new opportunities to challenge conduct that did not live up to these standards. Death penalty litigation, for example, has become lengthy and complex due largely to the Warren Court's rulings and later decisions on the Eighth Amendment's protection against "cruel and unusual punishment." Thus in criminal law the Supreme Court has produced a host of litigious policies.
Moving beyond the criminal justice system, courts became deeply involved in managing the conduct of a wide range of public officials. Beginning in the 1960s, schools, prisons, and mental hospitals all fell under the supervision of courts when they were found to exhibit constitutional defects. The "due process revolution" commenced with the 1970 case of Goldberg v. Kelly,44 which required hearings for those faced with the loss of welfare payments. In the wake of Goldberg, courts required hearings for loss of drivers' licenses, government employment, and tenancy in low-income housing projects and gave procedural protections to the mentally ill, students, parolees, and prisoners. Although these procedural rights did not always involve litigation, they created quasi-adjudicative forums in which lawyers and legal doctrine could influence governmental institutions. Moreover, defects in whatever process was employed could be challenged in court.
In the late 1960s, courts also increased their scrutiny of administrative agency decision making. They relaxed traditional limitations on lawsuits to allow various plaintiffs—frequently public interest groups—to challenge agency actions. Often the outcome of this litigation was an order to agencies to implement or enforce regulations or to explain why they had not done so.45 Fearing that agencies were not consulting a sufficiently broad range of voices in their deliberations, courts required agencies to allow public interest groups to participate in decision making and to have their concerns addressed. Under the doctrine of the "hard look," courts scrutinized the actions of agencies to see whether they accorded with statutory guidelines, often in a way that slid over into second-guessing the substance of agency decisions.46
Litigants were not only allowed to challenge the decisions of agencies but also given the right to bypass those agencies by enforcing regulatory statutes themselves as "private attorneys general." The flurry of regulatory statutes passed in the early 1970s, like the civil rights statutes of the 1960s, often granted potential litigants one or both rights.47 The ability of private litigants to enforce statutes by themselves was certainly nothing new: in the United States and elsewhere it has historically been a mode of criminal enforcement. But these regulatory statutes, governing clean air and water, consumer credit, and product safety, reinvigorated private law enforcement in realms that had been considered the province of the state.
How to pay for all this litigation? The Legal Services Corporation, created in 1965, became one source, though most of its resources were devoted to helping poor people in everyday disputes with landlords, businesses, and estranged spouses. In the 1960s, courts began awarding attorney's fees to be paid by defendants to prevailing plaintiffs in public interest cases. When the U.S. Supreme Court ruled in 1975 that it would not award fees without specific statutory authorization, Congress responded with a host of statutes doing just that. The most prominent of these statutes, the Civil Rights Attorney's Fees Award Act of 1976, created presumption in favor of awards from defendants to prevailing plaintiff attorneys and a presumption against awards from losing plaintiffs to prevailing defendants.48 By 1983 a review by the Supreme Court found 150 such federal fee-shifting provisions.49 The availability of these fees for plaintiffs stimulated heavy growth in public interest law firms and lowered the barriers to bringing lawsuits.50
Not content to sit by while private attorneys brought lawsuits on prominent social issues, public officials in the late 1990s got into the practice, as well. Thus grew yet another form of litigious policy making—lawsuits brought by government agencies themselves against producers of troublesome products. Lawsuits against the makers of cigarettes, guns, and lead paint were brought by states and the federal government, often in the absence of regulatory or legislative action. The threat of a federal lawsuit, for example, convinced Smith and Wesson to change the way it makes and sells handguns—changes Congress was unwilling to legislate. Government-led lawsuits are often brought by a partnership between public and private attorneys, with the possibility of enormous gains for both sides, an arrangement that has been heavily criticized.51
As if to spotlight the growth of litigious policies in the twentieth century, the two most dramatic moments in American politics at the turn of the century each took the form of litigation. First was Bill Clinton's impeachment trial, made possible by the development of sexual harassment law. Clinton's lies about Monica Lewinsky rose to the level of "high crimes and misdemeanors" in some (mostly Republican) eyes because they occurred during a legal proceeding, a deposition in a harassment lawsuit brought by Paula Jones. The impeachment struggle that ensued was largely a debate over the weight of the obligation to honor even those legal processes one considers illegitimate. The next great presidential political-legal battle was the fight between Al Gore and George W. Bush over the 2000 election. Bush commenced the barrage of lawsuits by arguing in federal court that a hand recount would violate the Fourteenth Amendment equal protection rights of voters—a novel argument that demonstrated once again that Republicans, like Democrats, are skilled at creating new species of legal claims when the need arises.52 That didn't stop conservative commentators from excoriating Gore's own legal strategy as excessively litigious or berating the Florida Supreme Court, Gore's greatest ally, as an "Imperial Judiciary."53 In the end, Bush's equal protection argument won the day, and for the first time in American history, a Supreme Court decision concluded the presidential election.
The Clinton impeachment and the 2000 election struggle served only to underline a basic fact of American life that stretches far beyond presidential politics: across many areas of law and public policy, both the opportunities for and rewards of litigation have vastly increased. Throughout the second half of the twentieth century, Americans increasingly turned to litigation as a means of resolving troubling social issues. In other words, Tocqueville was, as usual, ahead of his time.
The Constitutional Theory Why have Americans turned to litigation to solve social problems? Why, despite all the jeremiads against litigiousness that ring through the nation, has it been so hard to get them to turn away? The argument of this book is that the ultimate answer lies not with the usual suspects—rapacious lawyers and their rights-conscious clientele—but with fundamental features of the American constitutional tradition, which create incentives for activists to favor litigious policies.
Robert Kagan has highlighted the importance of the decentralization of American government in accounting for the distinctive role of litigation in American public policy.54 He points to a fateful combination in contemporary American politics: a polity that demands governmental activism on social problems has been joined to an inherited governmental structure whose hallmark is division of authority. The framers of the Constitution, fearful of governmental tyranny, created a highly permeable, decentralized state structure. The object was to make it hard for the national government to do much of anything. In this object, the framer's design eventually failed: it did not forestall a massive expansion of the national government. Yet the design has had an effect on the forms that the expansion has taken. In particular, it has channeled many demands for action on social problems toward courts.
Kagan's research, with its linkage between the constitutional tradition and the shape of American public policy, is the basis for what I will call the Constitutional Theory of litigious policy making. The theory is constitutional in two senses. First, it focuses on the importance of three structures embedded in the U.S. Constitution—federalism, separation of powers, and judicial independence. These structures are a set of rules that shape the incentives of political actors. In particular, the rules lead those who seek action on social problems to favor litigious policies, since court-based implementation is a means of overcoming barriers to activist government created by the Constitution.
But the Constitution is not merely a set of rules that political actors strategically manipulate. It is, as its name implies, constitutive.55 The Constitution shapes the way Americans view politics and government, even the way they see their own political interests. And this suggests the second sense in which the theory is constitutional: it emphasizes the significance of the distrust of centralized governmental power that is at the core of the American constitutional tradition. American activists support court-based schemes in part because of their ambivalent attitudes toward the welfare-regulatory state, attitudes that are strongly reinforced by the structures in the Constitution.
The constitutional tradition creates three specific incentives for activists to support litigious policies. Through litigious policies, activists can (1) insulate implementation of policy from political enemies (the insulation incentive); (2) do good things for constituents without spending governmental dollars (the cost-shifting incentive), and (3) gain power over the actions of states and localities (the control incentive). These three incentives—insulation, cost-shifting, and control—explain the prominence of litigious policies in American politics and the difficulty of dislodging those policies.
The Insulation Incentive American activists support litigious policies in part because they provide a means of implementing public policy that is relatively insulated from political enemies.56 Implementation is, of course, a vital step in the policy process: for activists, a policy that is never implemented, or implemented in ways they abhor, can be worse than no law at all. But implementation is a particularly problematic enterprise in a system of separated powers, such as that of the United States. Federal bureaucracies assigned to implement policies in a separated system serve a thousand masters—the president, members of Congress, interest groups, and the public. Each of these masters can seek to derail implementation of a policy. The public policy literature is rife with tales of regulatory agencies "captured" by the regulated, resulting in lax enforcement of rules. Courts, because of their relative independence from the rest of the political system and because of their decentralized structure, can provide a seemingly safer route for implementation. Lodging enforcement of antidiscrimination rules solely in the Equal Employment Opportunity Commission puts the future of civil rights law in the hands of whoever gains control over the commission. Allowing individuals to sue for discrimination in court scatters control over civil rights to litigants, judges, and juries around the nation. In a nation with a constitutional tradition based on suspicion of centralized governmental authority, it's not surprising that activists often favor court-based enforcement.
The Control Incentive Activists are also attracted to litigious policies as a way to gain control over the actions of states and localities.57 Federalism creates strong barriers to national controls over local policies. Within their own spheres, the Constitution says, the states are supreme and cannot be told what to do by the national government. Thus activists who wish to gain nationwide control over, say, school districts or police departments face severe constraints. In many nations the best way to control what's taught in schools is to become secretary of education. In the United States, by contrast, the secretary of education is relatively powerless: this official can only exhort school districts to change their curricula, or perhaps bribe the districts with federal aid. Litigious policies offer an attractive alternative to these routes. By enforcing court-protected rights against local agencies, activists can get federal courts to command the changes they wish. Civil rights laws, for example, gave civil rights activists a way to challenge the actions of local officials in the South. Fourth Amendment search and seizure lawsuits became a means to control the procedures of the police. Environmental laws have been used to control local development. These forms of litigation have the added virtue of appearing as "checks" on the abuses of local governmental officials, a frame that resonates strongly in a nation whose constitutional tradition is built around a fear of unchecked governmental power.
The Cost-Shifting Incentive The dream of all politicians is to do good things for their constituents without having to pay for them. Litigious policies make this fantasy a reality. Imagine, for example, that the public grows dissatisfied with the services rendered by health maintenance organizations (HMOs). Policy makers could address these concerns in numerous ways. For example, they could (a) create a publicly funded health care system to replace the despised HMOs, (b) establish a new regulatory bureaucracy to oversee HMO abuses, or (c) create a "patients' bill of rights" to allow individuals to sue HMOs for their sins. It isn't hard to understand the appeal of option (c), which unlike the others involves not a single penny of fiscal spending. By creating new rights—to be free of toxic waste dumps (as in the Superfund program), to sue when discriminated against, or to challenge HMO decision making—policy makers can claim credit for helping their constituents, but shift the costs on to others. Not only that, by lodging enforcement of rights in courts, politicians can transfer the cost of enforcement to private actors. In a constitutional tradition that stresses limited government and makes it particularly difficult to raise the revenue necessary to build the state,58 litigious policies have the great virtue of addressing social problems without tapping the budget. Activists, recognizing this, support and defend litigious policies.
Taken together, the insulation, control, and cost-shifting incentives explain the staying power of litigious policies in American politics. That is not to say that these incentives are ever present and all-powerful. They vary in intensity both over time and across policy domains. The insulation incentive, for example, does not operate when activists are convinced that they can trust bureaucratic agencies to implement the law as they wish.59 Similarly, the control incentive is only relevant to policy domains in which states and localities are significant actors. Control is not, for example, an incentive in a domain such as defense policy, where there is usually no need to wrest implementation from states and localities. Moreover, none of these incentives is relevant unless those who desire governmental action on a social problem gain the power to enact their desires into law—"activism" is a variable in itself. Thus to say that the insulation, control, and cost-shifting incentives have fostered litigious policies is not to claim that American public policy has been invariably litigious. It does suggest that these three incentives create a generalized tilt in American public policy toward courts as compared to the public policy of other nations. The three incentives explain why many areas of public policy that are bureaucratized in other nations are more judicialized in the United States.
More important for this study, the Constitutional Theory provides an explanation for why antilitigation efforts, despite their apparent popularity, face strong resistance. Courts provide an attractive way for American activists to meet their goals, and it takes an extraordinary effort to stop them or divert their energies to other channels.
The result of all this—greater judicialization of matters that in other nations are bureaucratized—takes on its full significance when we compare the organization of the American judicial system with that of the typical bureaucracy. Bureaucracies are centralized hierarchies: in the bureaucratic model, government policies are implemented by civil servants who are following fixed rules laid down by superiors. The American judicial system, by contrast, is based on what Kagan has called the model of "adversarial legalism." In an adversarial legal system, issues are organized as formal disputes between parties rather than as rules implemented by civil servants; the parties (individuals and organizations, mostly nongovernmental) have the burden of invoking and enforcing the rules. The decision makers in an adversarial legal model (judges and juries in the American court system) are not tightly bound to a centralized higher authority as in the bureaucratic model. The rules themselves are constantly in dispute and evolving: in the course of arguing how rules should be enforced, the parties also argue about what the rules should be. Public policy in an adversarial legal system, then, is decentralized, privatized, and fluid, often unpredictable.60
As the Constitutional Theory suggests, some of these features of adversarial legalism are what makes litigious policies so attractive to American activists. The decentralization inherent in adversarial legalism, for example, helps insulate the policy from control by enemies, while privatization means that implementation costs are not borne by the public fisc. But these features can also be sources of discontent. The fluidity and unpredictability of an adversarial legal system create troublesome uncertainties for the actors that system regulates. It is difficult, for example, to be certain about what kind of treatment a jury in a medical malpractice lawsuit might consider adequate, so doctors are tempted to practice "defensive medicine." Moreover, the privatization of public policy inherent in the adversarial legal model makes implementation dependent on the resources and choices of nongovernmental actors, thus creating further uncertainty, and great inequities as well. Finally, the process of implementing public policy through disputes among parties can be extraordinarily costly in both time and money, as the Laskin Poplar Superfund case demonstrates. Discontent with the costs, uncertainty, inequity, and inefficiency of adversarial legalism can provide a powerful stimulant to antilitigation reform, as the case studies in this book illustrate.
Paths to Reform This book describes a wide variety of antilitigation efforts, but at the outset it is helpful to contrast two basic forms, which I call discouragement and replacement. Discouragement policies aim to restrict or discourage litigation by making it harder or less rewarding to bring lawsuits. A typical discouragement policy, adopted by many states, is to cap the amount of money a plaintiff can win in a personal injury lawsuit. Discouragement policies like this do not stop litigation altogether but can reduce the volume and intensity of claims. Replacement reforms, by contrast, eliminate whole categories of litigation and replace them with some alternative mechanism. One notable example of replacement reform is the New Zealand accident insurance system, in which accident victims apply to a government agency for compensation rather than suing their victimizers in court. Another, less exotic replacement reform is the American workers' compensation system, an employer-funded insurance system designed to replace litigation over workplace injuries. The most recent replacement reform is the September 11th Victim Compensation Fund, a federal program intended to replace litigation over the terrorist attack on the World Trade Center towers. Replacement reforms like these can eradicate whole species of lawsuits.
Discouragement campaigns, particularly the tort reform movement, have become the most prominent of all antilitigation efforts. This book, however, focuses on replacement reforms because they are the most revealing of the causes of America's litigious public policy style: replacement efforts, unlike discouragement campaigns, force policy makers to compare the costs and benefits of litigious policies to alternative mechanisms designed to achieve similar goals. The study of replacement politics, then, can spotlight what exactly makes the mechanism of litigation so enticing to American policy makers—and what makes alternatives, especially the bureaucratic approaches used in other nations, less alluring.
The study of discouragement politics is, by contrast, bound to be disappointing on this score, because discouragement campaigns aren't ultimately about the virtues and vices of litigious policies. Discouragement politics, instead, is a fight over distributional justice. Discouragement battles are waged on such matters as how much victims of accidents should receive for their injuries or how much companies should pay for manufacturing defective products, not whether litigation is a good way to decide these questions. Because the distributional consequences of such fights are usually clear-cut, the politics of discouragement is usually fairly simple: groups aligned with plaintiffs square off against groups aligned with defendants. So, for example, the debate over restrictions in personal injury law typically pits Democrats, liberal constituencies, and lawyers against Republicans and business and professional groups.
Replacement politics is much more complex. Reformers in this path focus on the negative effects of adversarial legalism, principally its high transaction costs and uncertainty, and argue that the social problems involved can best be solved by some alternative mechanism. They seek to bring together groups associated with both plaintiffs and defendants to agree on the alternative. This path can lead to the elimination of whole species of lawsuits, but it is fraught with difficulties, as the case studies in this book demonstrate.
The first and most important barrier to replacement reforms is suggested by the Constitutional Theory. Many of the alternatives to litigation involve bureaucratic regulation or welfare programs. These alternatives are common in other economically advanced nations, but in the United States the constitutional tradition creates strong incentives for groups to favor litigation over these other forms of governmental action. The incentives—insulation, control, and cost-shifting—have to be overcome if governmental antilitigation reforms are to be adopted.
Related to the Constitutional Theory is a second, more general barrier. Replacement reforms are usually controversial because they reverse one of the major features of adversarial legalism—the privatization of public policy—by socializing what seems to be a conflict between individuals. This movement from individualized dispute to socialized solution is often resisted in American politics. In litigation, problems appear as discrete disputes between individuals. When, for example, your car is hit by a careless driver, both the problem and the solution seem clear: the numbskull who hit your vehicle should be punished by a lawsuit. Replacement reforms reconceive individual conflicts as social problems. So, for example, "no-fault" auto insurance is premised on the view that accidents are a predictable social hazard produced by automobiles and that the problem is best solved not by punishing individual drivers but by pooling the risk of accidents through the most efficient insurance system possible. As later chapters illustrate, the no-fault idea is controversial in part because it seems to neglect the individual dimension of the problem: the bad drivers appear to get away with their misdeeds. The problems in this book's case studies—auto accidents, bad reactions to vaccines, unemployment among people with disabilities—can be viewed either as social issues or as the product of individual transgressions. As the cases demonstrate, the weight of American political culture appears to favor the latter interpretation, and so proponents of reform policies face an uphill battle in creating a socialized alternative to litigation.
A third barrier to replacement reforms is the difficulty in bringing groups associated with plaintiffs and defendants together, even on the basis of common interests. The two sides usually have bitter rivalries, disparate cultures, and conflicting alliances. Each deeply distrusts the other. Coming to agreement on some alternative is hard enough; working together against opponents of reform is even harder. It takes an unusually gifted politician to create an effective plaintiff-defendant alliance, as we will see.
A fourth barrier is uncertainty about the alternative to litigation. Replacements for litigation are often complex and their effects hard to measure in advance. Replacements involve complicated trade-offs and mechanisms the likes of which only the most dedicated policy wonks are likely to understand. In an atmosphere of distrust, it is easy for opponents of the replacement reform to sow doubts about the alternative and hard for proponents to assuage those doubts.
Together these are formidable obstacles. Nonetheless, replacement proponents sometimes overcome them and enact sweeping reforms. The struggles over replacement proposals, though, reveal the deep political roots of America's litigious public policy style.
The Plan of the Book Many studies have compared the social policies of the United States to those of other advanced industrialized nations and found American policy to be uniquely court oriented. This book probes the political origins of these differences, the mechanisms that have kept litigious policies in place, and the conditions under which they may be successfully attacked. Thus the bulk of this book offers selected scenes from the struggle over litigation in American politics. Chapter 1 is an overview of the politics of litigation in the United States. Chapters 2 through 4 tell the stories of three antilitigation campaigns: the (feeble) attempt to forestall the creation of the Americans with Disabilities Act, the effort to enact no-fault auto insurance in California, and the drive to establish the Vaccine Injury Compensation Program. Chapter 5 summarizes the findings of the cases and suggests how they might lead Americans to rethink the way they argue about "litigiousness."
This is a book about litigation, but as the reader will soon discover, there is very little in these pages that directly examines the legal process or how courts do their work. Instead this book focuses on activists, lobbyists, policy experts, and legislators as they wrestle over litigious policies.
Why travel to legislatures to understand litigation? So far, most academics who have written about the litigation debate have analyzed it at the level of popular culture. They have highlighted the ways in which those who campaign against personal injury lawsuits use cultural myths or beliefs about litigation to strengthen their position.61 These studies are fascinating but necessarily limited in scope. First, they are limited to personal injury law and do not explore other arenas of antilitigation politics. Second, they focus on the production of litigation myths and so do not closely examine the policy-making process. In this book I closely scrutinize the role of ideas and interests in the making and unmaking of litigious policies.
There are several works that examine aspects of the politics of litigation, but no comprehensive study.62 American political scientists are quite familiar with the long-standing struggles over regulation and deregulation in the United States and the unending battle over the welfare state. Hundreds of books have been written about the politics of welfare and regulation. In this book I describe a parallel universe, the world of litigation politics, a realm that is just beginning to be explored.
Notes 1. My account of the Laskin Poplar Superfund dispute relies largely on the case study in Thomas W. Church and Robert T. Nakamura, Cleaning Up the Mess: Implementation Strategies in Superfund (Washington, D.C.: Brookings Institution, 1993), 47-58.
2. This estimate, which does not include EPA costs or money spent on lawyering, was provided by Jim Campbell, a trustee of the Laskin Poplar Superfund site (telephone conversation with author, November 15, 1995).
3. Church and Nakamura, Cleaning Up the Mess, 188 n. 16.
4. The lawsuit commenced in 1984; three consent decrees were lodged in 1993 ("Three Consent Decrees Lodged," Ohio Industry Environmental Advisor [October 8, 1993]).
5. Interview with Peter Poulos; Taft, Stettinius & Hollister; Cleveland, Ohio; April 16, 2001. Poulos estimates that less than 1 percent of the responsibility for the site is yet to be settled.
6. For a careful study of the building of the Stella Liebeck legend, see Judith Aks, William Haltom, and Michael McCann, "Symbolic Stella: On Media Coverage of Personal Injury Litigation and the Production of Legal Knowledge," Law and Courts Newsletter 7:3 (1997): 5-7.
7. For accounts of these and other lawsuits, see Meredith K. Wadman and Sam Delson, "A Nation of Lawyers: Avalanche of Civil Lawsuits Prompts Legislative Reform," Oakland Tribune, April 23, 1995, A1; Edward Felsenthal, "Avogadro's Number, You Say, Professor? I Don't Think So," The Wall Street Journal, May 9, 1995, A1; Zachary R. Dowdy, "Litigation Becoming a Pastime, Some Say," Boston Globe, March 8, 1996, 27; Neil MacFarquhar, "Extra and Errant Tee Shot May Hit Golfer's Wallet, Too," New York Times, January 28, 2000, A1; Richard B. Schmitt, "Uncharitable Acts: If Donors Fail to Give, More Nonprofit Groups Take Them to Court," Wall Street Journal, July 27, 1995, A1; "Try a Lighter Setting: Suit Claims Pastry Ignited," ABA Journal (May 1995), 38; Walter Berns, "Sue the Warden, Sue the Chef, Sue the Gardener . . .," Wall Street Journal, April 24, 1995, A12; Di Mari Ricker, "Who Wants to Sue a 'Millionaire'?" The Legal Intelligencer (June 5, 2000), 4; and Robert J. Samuelson, "Whitewater: The Law as Pit Bull," Washington Post, March 16, 1994, A19.
8. Academics and journalists have attempted to track down the origins of these and other fabulous litigation stories. In the case of the ladder in the manure, popularized by the television show 60 Minutes, reporters from The American Lawyer found that manure in fact had little to do with the case, which involved a ladder that broke apart due to defects in workmanship, severely injuring the plaintiff's leg (Stephen Brill and James Lyons, "The Not-So-Simple Crisis," The American Lawyer [May 1, 1986], 12). The $1 million award in the CAT scan case was based on adverse physical reactions to a dye that the patient had told the doctor she was allergic to—not the waning of her psychic powers. Further, the verdict was thrown out by the judge in the case (Robert M. Hayden, "The Cultural Logic of a Political Crisis," Studies in Law, Politics and Society 11 : 107). Some stories are pure inventions, as in the often repeated anecdote about a man who received $500,000 for injuries sustained when he attempted to use his lawnmower as a hedge trimmer (Stephen Daniels and Joanne Martin, "The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric and Agenda-Building," Law and Contemporary Problems 52:4 : 295 n. 105). As for the Kentucky Fried Rat story, it appears to be fictional, though widely believed. Another rodent litigation urban legend—concerning soda drinkers who find mice in their pop bottles—turns out to be based in reality. Gary Alan Fine has documented forty-five cases in which soda drinkers who found dead rodents in their bottles collected damages. See Gary Alan Fine, "The Kentucky Fried Rat: Legends and Modern Mass Society," Journal of the Folklore Institute 17 (1980) 222-43; Fine, "Cokelore and Coke Law: Urban Belief Tales and the Problem of Multiple Origins," Journal of American Folklore 92 : 477-82; and a collection of Fine's writings on contemporary folklore, Manufacturing Tales: Sex and Money in Contemporary Legends (Knoxville: University of Tennessee Press, 1992).
9. Philip K. Howard, The Death of Common Sense: How Law Is Suffocating America (New York: Random House, 1994).
10. See Marc Galanter, "Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about Our Allegedly Contentious and Litigious Society," UCLA Law Review 31 (1983): 4-71; Galanter, "The Day after the Litigation Explosion," Maryland Law Review 46:1 (1986): 3-39; and Michael J. Saks, "Do We Really Know Anything about the Behavior of the Tort Litigation System—and Why Not?" University of Pennsylvania Law Review 140:4 (1992): 1147-1292.
11. Lincoln Caplan, "Who Ya Gonna Call? 1-800-Sue Me," Newsweek (March 20, 1995), 36; Stephen Budiansky, "How Lawyers Abuse the Law," U.S. News and World Report (January 30, 1995), 50.
12. See, for example, The Blame Game: Are We a Country of Victims? (ABC News Special, August 17, 1995).
13. See the comprehensive study of accident compensation by the Rand Institute for Civil Justice, Deborah Hensler et al., Compensation for Accidental Injuries in the United States (Santa Monica, Calif.: Rand Institute for Civil Justice, 1991), 121.
14. The Civil Litigation Research Project, which studied patterns of litigation in American households, found that for every one thousand "grievances" perceived by respondents involving at least $1,000, only fifty cases were filed in court, a rate of 5 percent. See David M. Trubek et al., Civil Litigation Research Project: Final Report—Summary of Principal Findings (Madison: University of Wisconsin Law School, 1983), summary 19, figure 2; and Richard E. Miller and Austin Sarat, "Grievances, Claims, and Disputes: Assessing the Adversary Culture," Law and Society Review 15 (1980-81): 537-65.
15. See Paul C. Weiler et al., A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation (Cambridge, Mass.: Harvard University Press, 1993). In this study medical experts combed through patient records to determine whether negligent medical practice had resulted in patient injury. That determination served as the baseline by which to determine the rate of claiming. In another study, a survey of 220 women who had suffered the death or permanent injury of a baby during delivery, none filed a medical malpractice claim (Frank A. Sloan and Chee Ruey Hsieh, "Injury, Liability, and the Decision to File a Medical Malpractice Claim," Law and Society Review 29:3 : 413-35).
16. Wayne McIntosh's study of litigation patterns in St. Louis over the past 150 years concludes that "there were far more complaints (per capita) registered with the court in the 1820s, '30s and '40s than in the 1960s and 1970s—far more" (Wayne V. McIntosh, The Appeal of Civil Law: A Political-Economic Analysis of Litigation [Urbana: University of Illinois Press, 1990], 191-92). A study of Accomack County, Virginia, in 1639 found a litigation rate of roughly 240 per thousand persons (George B. Curtis, "The Colonial County Court, Social Forum and Legislative Precedent, Accomack County, Virginia, 1633-39," Virginia Magazine of History and Biography 85 : 287). That rate is more than four times that of any contemporary county for which data are available, according to Marc Galanter, "Reading the Landscape of Disputes," 41.
17. The Civil Litigation Research Project found that Americans took about 11 percent of their middle-range disputes to court, while a replication of the study in Australia found a 5.5 percent rate. It is difficult to say whether this counts as a large difference. Moreover, as Marc Galanter has pointed out, the gap in filings may simply reflect differences in practices, such as the absence in Australia of contingency fees (see Miller and Sarat, "Grievances, Claims, and Disputes: Assessing the Adversary Culture," 537, table 2; Galanter, "Reading the Landscape of Disputes," 60; Robert L. Nelson, "Ideology, Scholarship and Sociolegal Change: Lessons from Galanter and the 'Litigation Crisis,'" Law and Society Review 21:5 : 681; and Jeffrey M. FitzGerald, "Grievances, Disputes and Outcomes: A Comparison of Australia and the United States," Law in Context 1 : 15).
A study comparing Canadian and American accident victims found the Canadians less likely to claim compensation but more likely to seek legal assistance (Herbert M. Kritzer, W. A. Bogart, and Neil Vidmar, "The Aftermath of Injury: Cultural Factors in Compensation Seeking in Canada and the United States," Law and Society Review 25:3 : 499-544). Another study found the English less likely than Americans to blame someone else for an accident or claim compensation (Herbert M. Kritzer, "Propensity to Sue in England and the United States of America: Blaming and Claiming in Tort Cases," Journal of Law and Society 18 : 400-27).
All of these studies have difficulty disentangling the influence of cultural differences from the effects of differing structural incentives. For example, Gary Schwartz demonstrates that, despite relatively similar tort law doctrine, product liability and malpractice litigation rates are much higher in the United States than in Western Europe. Yet while Schwartz finds the notion of individual-level "litigiousness" intriguing, he suggests that the litigation gap is related to differences in procedure, especially the use of juries and contingency fees in the United States, and to the much greater provision of disability payments in Europe. P. S. Atiyah comes to similar conclusions in his comparison of tort litigation in the United States and Britain. See Schwartz, "Product Liability and Medical Malpractice in Comparative Context," in The Liability Maze, ed. Peter W. Huber and Robert E. Litan (Washington, D.C.: Brookings Institution, 1991); and P. S. Atiyah, "Tort Law and the Alternatives: Some Anglo-American Comparisons," Duke Law Journal (1987): 1002-44.
The comparison with Japan is far more complicated than it at first appears. Several scholars of the Japanese legal system have argued that lower rates of litigation in Japan are not a result of a cultural aversion to conflict. Japanese sue less, these researchers say, because litigation simply doesn't pay as well in Japan as it does elsewhere. And that, the researchers argue, is no accident: Japanese elites have designed the disputing system to channel disputants away from litigation, either by making it hard to get a day in court or by making verdicts so predictable that it makes little sense to fully adjudicate claims. According to these studies, an American plucked from his or her litigation-encouraging environment in the United States and placed in the litigation-discouraging institutional structures of Japan would act just as the Japanese do. See John Haley, "The Myth of the Reluctant Litigant," Journal of Japanese Studies 4 (1978): 359; Takio Tanase, "The Management of Disputes: Automobile Accident Compensation in Japan," Law and Society Review 24 (1990): 651; Frank K. Upham, Law and Social Change in Postwar Japan (Cambridge, Mass.: Harvard University Press, 1987); and J. Mark Ramseyer and Minoru Nakazato, "The Rational Litigant: Settlement Amounts and Verdict Rates in Japan," Journal of Legal Studies 18:2 (1989): 263-90.
18. Dramatically large jury verdicts in tort lawsuits make wonderful fodder for the news media; verdicts for the defense and statistical data demonstrating the fate of the typical litigant are deemed boring and so tend to be ignored. The result is a highly skewed view of the tort system that nicely supports the tort reform movement's goals (Michael McCann and William Haltom, "Hegemonic Tales and Subversive Statistics: A 20-year Study of News Reporting about Civil Litigation" [paper presented at meeting of the Law and Society Association, Miami Beach, Fla., May 26, 2000]). See also Stephen Daniels and Joanne Martin, Civil Juries and the Politics of Reform (Evanston, Ill.: Northwestern University Press, 1995).
19. See Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (Cambridge, England: Cambridge University Press, 1998). Peanut butter may not be a matter fit for the attention of federal courts, but as Feeley and Rubin note, the Supreme Court has in recent years sustained the claim of a nonsmoking prisoner who wanted to be protected from secondhand smoke as well as the claim of a preoperative transsexual prisoner who wanted to be protected from his or her fellow prisoners (p. 15).
20. For a long list of these studies see Robert A. Kagan, Adversarial Legalism: The American Way of Law (Cambridge, Mass.: Harvard University Press, 2001), 8. See also Robert A. Kagan and Lee Axelrad, eds., Regulatory Encounters: Multinational Corporations and American Adversarial Legalism (Berkeley and Los Angeles: University of California Press, 2000); and Werner Pfennigstorf and Donald G. Gifford, eds., A Comparative Study of Liability Law and Compensation Schemes in Ten Countries and the United States (Oak Brook, Ill.: Insurance Research Council, 1991).
21. Some studies that take exception to the claim that American public policy is distinctively litigious are Eric Feldman, "Blood Justice: Courts, Conflict and Compensation in Japan, France and the United States," Law and Society Review 34 (2000): 561; Basil Markesinis, "Litigation-Mania in England, Germany, and the USA: Are We So Very Different?" Cambridge Law Journal 49 (1990): 233; and Jeffrey M. Sellers, "Litigation as a Local Political Resource: Courts in Controversies over Land Use in France, Germany and the United States," Law and Society Review 29 (1995): 475. The growth of judicial review, the ability of courts to strike down government actions as unconstitutional, and the development of transnational judicial institutions, especially in Europe, have been the main developments noted by scholars who see a growing role for courts across the globe. Whether this growth will filter down into nonconstitutional domains, such as injury compensation, remains an open question. See C. Neil Tate and Torban Vallinder, eds., The Global Expansion of Judicial Power (New York: New York University Press, 1995); and Alex Stone Sweet, Governing with Judges: Constitutional Politics in Europe (New York: Oxford University Press, 2000).
22. I thank Susan Silbey for this insight.
23. Erhard Blankenburg comes to a similar conclusion in comparing two neighboring countries, the former West Germany and the Netherlands, with widely disparate litigation rates. The cause of the difference, Blankenburg concludes, is the supply side rather than the demand side: German institutions encourage litigation, Dutch policies discourage it. See Blankenburg, "Civil Litigation Rates as Indicators for Legal Cultures," in Comparing Legal Cultures, ed. David Nelkin (Brookfield, Vt.: Dartmouth Press, 1997), 41-68.
24. Some litigious policies promote what Lawrence Friedman calls "judicialization"—the process of converting disputes or conflicts into court cases (Lawrence M. Friedman, "Limited Monarchy: The Rise and Fall of Student Rights," in School Days, Rule Days: The Legalization and Regulation of Education, ed. David L. Kirp and Donald N. Jensen [Philadelphia: Falmer Press, 1986], 239). The category of litigious policies includes laws that judicialize, but the category is broader: where courts already govern disputes, litigious policies serve to increase the volume of legal conflict by eliminating barriers to suing, creating new types of satellite litigation, or increasing the rewards available to plaintiffs. Litigious policies thus expand the threat of litigation in both previously judicialized and nonjudicialized realms.
25. Church and Nakamura found that the Superfund program was administered differently from region to region, with some regional managers favoring a more prosecutorial, litigious approach. See generally Church and Nakamura, Cleaning Up the Mess.
26. A six-nation survey of toxic waste laws in the United States and Europe found only the Netherlands and the United States had retrospective liability; only the United States and Sweden had strict liability (Andrew Lohof, The Cleanup of Inactive Hazardous Waste Sites in Selected Industrialized Countries, discussion paper no. 069 [Washington D.C.: American Petroleum Institute, August 1991], vi, table 1).
27. This was the conclusion of a study comparing Superfund with hazardous waste efforts in Germany, the Netherlands, and Denmark (Thomas W. Church and Robert T. Nakamura, "Beyond Superfund: Hazardous Waste Cleanup in Europe and the United States," Georgetown International Environmental Law Review 7 : 15-57).
28. See Marc K. Landy, "Cleaning Up Superfund," The Public Interest (fall 1986), 58-71; Marc Landy and Mary Hague, "The Coalition for Waste: Private Interests and Superfund," in Environmental Politics: Public Costs, Private Rewards, ed. Michael S. Greve and Fred L. Smith, Jr. (New York: Praeger, 1992), 67-87; and Jerry Taylor, "Salting the Earth: The Case for Repealing Superfund," Regulation 18:2 (1995): 53-65. The Rand Institute for Civil Justice has published several studies on transaction costs incurred in the Superfund program. See, for example, Lloyd S. Dixon, Deborah S. Drezner, and James K. Hammitt, Private-Sector Cleanup Expenditures and Transaction Costs at 18 Superfund Sites (Santa Monica, Calif.: Rand Institute for Civil Justice, 1993).
29. Margaret Kriz, "Super Fight," National Journal (January 29, 1994), 226; and "How the Twain Met," National Journal (June 6, 1994), 1291-95. Early in 2002 President Bush signed a modest Superfund reform shielding developers who buy abandoned industrial sites from being held responsible for toxic waste cleanups.
30. George Lardner, Jr., "'Tort Reform': Mixed Verdict; Bush's First Priority in Office Pleased Business, Spurred Donations and Cut Public Remedies," Washington Post, February 10, 2000, A6.
31. Walter K. Olson, The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York: Truman Talley Books-Dutton, 1991); Howard, Death of Common Sense; Max Boot, Out of Order: Arrogance, Corruption and Incompetence on the Bench (New York: Basic Books, 1998); Philip K. Howard, The Lost Art of Drawing the Line: How Fairness Went Too Far (New York: Random House, 2001); and Walter K. Olson, The Excuse Factory: How Employment Law Is Paralyzing the American Workplace (New York: Free Press, 1997).
32. American Tort Reform Association, "An expectant mother has a right to expect more than this" (poster); Aetna Insurance Company, "Sue City, U.S.A." (advertisement), both reproduced in Daniels and Martin, "The Question of Jury Competence," 290.
33. Take, for example, an ABC television news documentary The Trouble with Lawyers, in which John Stossel portrays a society gone litigation mad (January 2, 1996). A typical newspaper version of this theme is Wadman and Delson, "A Nation of Lawyers: Avalanche of Civil Lawsuits Prompts Legislative Reform," A1.
34. See for example Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (Chicago: University of Chicago Press, 1991).
35. A series of studies by the Rand Institute for Civil Justice has documented the high transaction costs of litigation in such areas as auto accidents and asbestos injuries. See Rand Institute for Civil Justice, Annual Report (Santa Monica, Calif.: Rand Institute for Civil Justice, 1993-2001), for a summary of these findings.
36. Communitarian critics, such as Mary Ann Glendon, see American politics as overly influenced by rights talk and other forms of legalistic discourse that prevent political compromise. See, for example, Glendon's Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).
37. Judith Resnik, "Failing Faith: Adjudicatory Procedure in Decline," University of Chicago Law Review 53 (1986): 494.
38. Robert A. Kagan, "Adversarial Legalism and American Government," Journal of Public Policy and Management 10:3 (1991): 369; Adversarial Legalism, 34-58; and "Trying to Have It Both Ways: Local Discretion, Central Control, and Adversarial Legalism in American Environmental Regulation," Ecology Law Quarterly 25:4 (1999): 718. Kagan's discussion of the effects of decentralization in American public policy draws on Mirjan Damaska's The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven, Conn.: Yale University Press, 1986).
39. Alexis de Tocqueville, Democracy In America, trans. George Lawrence, ed. J. P. Mayer (New York: Harper and Row, 1969), 270.
40. The United States in the nineteenth century was, according to Stephen Skowronek, a state of "courts and parties." See his Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (New York: Cambridge University Press, 1982).
41. For this account of changes in tort law, I rely on Donald G. Gifford, "The American Tort Liability System," in A Comparative Study of Liability Law and Compensation Schemes, 9-46; Edmund Ursin, "Judicial Creativity and Tort Law," George Washington Law Review 49:2 (1981): 229-308; Daniel Polisar and Aaron Wildavsky, "From Individual to System Blame: A Cultural Analysis of Historical Change in the Law of Torts," Journal of Policy History 1 (1989): 129-55; G. Edward White, Tort Law in America: An Intellectual History (New York: Oxford University Press, 1985); and Gary T. Schwartz, "The Beginning and the Possible End of the Rise of Modern American Tort Law," Georgia Law Review 26 (1992): 601-702.
42. See Deborah R. Hensler et al., Class Action Dilemmas: Pursuing Public Goals for Private Gain (Santa Monica, Calif.: Rand Institute for Civil Justice, 2000), 9-47; and Judith Resnik, "From 'Cases' to 'Litigation,'" Law and Contemporary Problems 54 (1991): 5-68. The plaintiffs in the Pentium chip litigation got a replacement chip and, in some cases, reimbursement for work ruined by the chip's defects; their lawyers asked for $6 million in fees (Barry Meier, "Fistfuls of Coupons," New York Times, May 26, 1995, C1).
43. The expansion of personal liberties and focus on the rights of minorities did not start, of course, with the Warren Court. It can be traced at least as far back as Justice Stone's famous "Footnote Four" in his 1937 Carolene Products opinion, which presaged the Court's shift away from protecting economic rights toward guarding civil liberties (U.S. v. Carolene Products Co., 304 U.S. 144 ). It was under the Warren Court, however, that this new agenda reached its apex.
44. Goldberg v. Kelly, 397 U.S. 254 (1970).
45. Richard B. Stewart and Cass Sunstein, "Public Programs and Private Rights," Harvard Law Review 95 (1982): 1197. For a vivid description of the defects of this type of litigation, see Jeremy Rabkin, Judicial Compulsions: How Public Law Distorts Public Policy (New York: Basic Books, 1989).
46. Martin M. Shapiro, Who Guards the Guardians: Judicial Control of Administration (Athens: University of Georgia Press, 1988). The phrase comes from D.C. Circuit judge Harold Leventhal's opinion in Greater Boston Television Corp. v. FCC, 444 F. 2d 841 (1970).
47. The laws with citizen suit provisions include the Clean Air Act; Federal Water Pollution Control Act; Noise Control Act; Marine Protection, Research and Sanctuaries Act; Resource Conservation and Recovery Act; 1986 Superfund Amendment Act; Endangered Species Act; Consumer Product Safety Act; and Truth in Lending Act. For discussion about the politics of citizen suit provisions, see R. Shep Melnick, Regulation and the Courts: The Case of the Clean Air Act (Washington, D.C.: Brookings Institution, 1983); and Edward L. Rubin, "Legislative Methodology: Some Lessons from the Truth-in-Lending Act," Georgetown Law Journal 80 (1991): 233-309.
48. Brian K. Landsberg, Enforcing Civil Rights: Race Discrimination and the Department of Justice (Lawrence: University Press of Kansas, 1997), 43.
49. Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983), cited in Susan Gluck Mezey and Susan M. Olson, "Fee Shifting and Public Policy: The Equal Access to Justice Act," Judicature 77 (1993): 13-20, at n. 5.
50. Karen O'Connor and Lee Epstein, "Bridging the Gap between Congress and the Supreme Court: Interest Groups and the Erosion of the American Rule Governing Award of Attorney's Fees," Western Political Quarterly 38 (1985): 238-49.
51. Barry Meier, "Bringing Lawsuits to Do What Congress Won't," New York Times, March 26, 2000, sec. 4, p. 3; Robert Reich, "Regulation Is Out, Litigation Is In," USA Today, February 11, 1999, 15A; Center for Legal Policy at the Manhattan Institute, Regulation by Litigation: The New Wave of Government-Sponsored Litigation (conference proceedings, June 22, 1999, Washington, D.C.).
52. E. J. Dionne, Jr., "Suddenly, Bush Likes the Lawyers," in Bush v. Gore: The Court Cases and the Commentary, ed. E. J. Dionne, Jr., and William Kristol (Washington, D.C.: Brookings Institution, 2001), 181-82.
53. William Kristol, "Crowning the Imperial Judiciary," and "A President by Judicial Fiat," in ibid., 209-10; and Robert N. Hochman, "Our Robed Masters," in ibid., 253-57.
54. See Kagan, "Adversarial Legalism and American Government," and "Trying to Have It Both Ways."
55. On the "constitutive turn" in sociolegal studies, see Patricia Ewick and Susan S. Silbey, The Commonplace of Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998); Sally Engle Merry, Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans (Chicago: University of Chicago Press, 1990); Austin Sarat, " . . . 'The Law Is All Over': Power, Resistance, and the Legal Consciousness of the Welfare Poor," Yale Journal of Law and Humanities 2 (1990): 343-79; Carol J. Greenhouse, Barbara Yngvesson, and David M. Engel, Law and Community in an American Town (Ithaca, N.Y.: Cornell University Press, 1996); Austin Sarat and Thomas R. Kearns, eds., Law in Everyday Life (Ann Arbor: University of Michigan Press, 1993); Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago: University of Chicago Press, 1994); and David M. Engel, "Law, Culture and Children with Disabilities: Educational Rights and the Construction of Difference," Duke Law Journal 1 (1991): 166-205.
56. Kagan discusses this point in Adversarial Legalism, 47-50.
57. See ibid., 44-46.
58. See generally Sven Steinmo, Taxation and Democracy (New Haven, Conn.: Yale University Press, 1993).
59. See Charles R. Shipan's much more fine-grained analysis of this point in Designing Judicial Review: Interest Groups, Congress and Communications Policy (Ann Arbor: University of Michigan Press, 1997). Shipan argues that, when interest groups are calculating whether or not to support judicial review of agency decision making, they consider such factors as previous experiences with the agency and with courts, the "legal regime" of the era, perceptions about each institution's capacities, and the costs and benefits to other groups (pp. 15-33). My analysis differs from Shipan's in two major respects. First, my level of analysis is broader since I am asking why activists might prefer court-based implementation of public policy generally, not simply in the context of judicial review of administrative agency decisions. Second, my analysis is grounded in comparative research: this book probes the mechanisms that make American public policy generally more court centered as compared to other advanced economies. Thus my emphasis is on broad comparative patterns rather than variation within the United States. I do, however, draw some tentative conclusions in the concluding chapter about the conditions under which litigious policies can be successfully attacked.
60. See Kagan, "Adversarial Legalism and American Government," and Adversarial Legalism, 9-13. The American judicial system is not, of course, the only structure that can be characterized as having an adversarial legal form of organization. Kagan shows that, for example, bureaucratic agencies can take on degrees of adversarial legalism to the extent that they structure issues as formal legal disputes between parties, decouple decision makers from higher authorities, and allow the rules to be argued over and modified. Conversely, judicial systems can vary in their degree of adversarial legalism to the extent that they vary in these attributes. For example, the Federal Claims Court, which administers the Vaccine Injury Compensation Program described in chapter 4, scores much lower on adversarial legalism than the typical American court.
61. See, for example, Marc Galanter, "News from Nowhere: The Debased Debate on Civil Justice," Denver University Law Review 71 (1993): 77-113; David M. Engel, "The Oven Bird's Song: Insiders, Outsiders and Personal Injuries in an American Community," Law and Society Review 18 (1984): 1; Hayden, "The Cultural Logic of a Political Crisis"; and Daniels and Martin, Civil Juries and the Politics of Reform.
62. Two studies of legislative antilitigation efforts are Euel Elliot and Susette M. Talarico, "An Analysis of Statutory Development: The Correlates of State Activity in Product Liability Legislation," Policy Studies Review 10 (1991): 61-78; and Thomas J. Campbell, Daniel P. Kessler, and George B. Shepherd, The Causes and Effects of Liability Reform: Some Empirical Evidence (Cambridge, Mass.: National Bureau of Economic Research, 1994).