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).
The Battle over Litigation Litigation is under siege from many directions, but as I argued in the introduction, some attacks turn out to be more significant than others. While tort reformers, for example, are aimed simply at reducing the volume and cost of litigation, other antilitigation efforts can eradicate whole species of lawsuits. It is these more sweeping campaigns, in which policy makers are led to ponder the merits of litigation versus other problem-solving devices, that teach the most about the roots of America's distinctively litigious public policy style. In focusing on two of the most visible components of the attack on litigation, tort reform and alternative dispute resolution, commentators have missed broader, more theoretically significant patterns. A review of the many struggles over litigious policies in American politics and the political forces involved in the litigation debate puts the individual battles in context.
The Attack It would be arbitrary to pinpoint a moment when the attack on litigation began. There have always been antilitigation impulses and even antilitigation reforms in the United States. Yet as late as the 1960s, in the midst of an enormous expansion in litigious policies, there was little mention of litigiousness as a major problem in American life. Indeed, within the legal profession the major criticism of the legal system was that it was inaccessible and so unavailable to poor and middle-class people. More litigation, not less, was needed. At some point in the 1970s, however, a shift began. Concerns about accessibility faded, and misgivings about litigation took center stage. A wide-ranging debate over the costs and benefits of litigation began.
Within the bar an indicator of the shift was the 1976 Roscoe Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice. Number one among the causes cited by the participants—federal judges, elite lawyers, and law professors—was "overload," both in the sheer number of cases filed and in the expectations people had about the problem-solving capacities of courts. "The American public today perceives courts as jacks-of-all-trades, available to furnish the answer to whatever may trouble us," said Simon Rifkind, a corporate lawyer and former federal judge. As a result, courts were carrying a "backbreaking burden." Others complained of the expanding length and complexity of litigation. With the growth of procedural rights for defendants, criminal cases "never seem to end," said Walter Schaefer, a judge. Francis Kirkham, a corporate lawyer, claimed that in some kinds of civil litigation "discovery knows no bounds" and that class action lawsuits in the federal courts were "reaching flood stage." Echoing the aquatic metaphor, U.S. Attorney General Edward Levi said that courts were "deluged with business." The problem of overload was so serious, claimed Solicitor General Robert Bork, that "the integrity of the federal system is threatened." Kirkham worried whether the nation was "retaining the capacity to achieve justice by rational means."
The Pound Conference participants suggested a myriad of solutions to the problem of overloaded courts, proposals that would set much of the agenda for antilitigation reformers over the next two decades. Contrary to their image as lawsuit mongers, the elite lawyers at the conference took a very critical stance toward litigation.
Beginning in the 1970s, a new skepticism about the utility of litigation also arose among academics. Researchers in law and the social sciences argued that courts lacked the capacity to be good policy makers and that litigation wasn't a very effective way to make society more just. Although these themes were hardly new novel, they took on particular poignancy coming after two decades in which reformers had turned repeatedly to litigation as a tool of reform. Indeed, some of the criticisms of litigation came from those who had eagerly accepted the premises of the legal reform model. Gerald Rosenberg went to law school hoping to become a social reformer but discovered that social change through constitutional litigation was a Hollow Hope. Radical lawyers in the critical legal studies movement, some of them veterans of civil rights struggles, analyzed the limits of liberal legal reform; critical race theorists, though more sympathetic to rights laws, joined in. Meanwhile communitarian critics of liberalism articulated yet another set of complaints about the influence of litigation on American life. Mary Ann Glendon, for example, argued that American politics was overly legalistic, dominated by "rights talk" that polarized citizens and oversimplified issues. Economists condemned litigation for its high costs and impact on American competitiveness. Conservatives and a few liberals criticized the Warren Court's expansion of procedural rights in the criminal justice system. Even many tort law professors, a group that had promoted the liberalization of liability in the 1950s and 1960s, were by the 1980s deeply troubled by the shortcomings of litigation as a means of compensating injury. Echoing their criticisms was a flurry of research on civil litigation that began in the 1980s, much of it supportive of antilitigation reforms.
By the 1990s antilitigation reform even became the stuff of national politics, thanks largely to the efforts of Vice President Dan Quayle. During the Bush administration Quayle developed litigation reform into a political issue, and mainly through his rhetorical attacks it occasionally popped into the national spotlight.
The apex of Quayle's anti-litigation campaign was his 1991 speech to the American Bar Association (ABA). Applauding Walter Olson's The Litigation Explosion and estimating that tort litigation cost over $300 billion dollars each year, Quayle called the civil justice system a "self-inflicted competitive disadvantage." In one of the more widely discussed sections of his speech, Quayle asked, "Does America really need 70 percent of the world's lawyers? Is it healthy for our economy to have 18 million new lawsuits coursing through the system annually?" As a step toward remedying these conditions, Quayle proposed fifty antilitigation reforms recommended by the President's Council on Competitiveness, which he chaired.
Rising to the challenge, John Curtin, president of the ABA, said his organization was willing to consider the proposals, but "Anyone who believes a better day dawns when lawyers are eliminated has the burden of explaining who will take their place. Who will protect the poor, the injured, the victims of negligence, the victims of racial discrimination, and the victims of racial violence? . . . Lawyers are the simple yet essential means by which people seek to vindicate their rights and we must not foreclose that means." Quayle had not actually proposed the extermination of lawyers, so Curtin's response was a bit of a non sequitur. But the exchange was dramatic and drew media attention. Sophisticated critics, besides noting Quayle's use of dubious statistics, pointed out that Quayle, like Curtin, was shadowboxing: his reforms were far less sweeping than his rhetoric suggested. Many were minor procedural measures that the ABA itself had supported; others sounded major but on inspection turned out to be narrow in scope. Nonetheless, a splash was made.
None of Quayle's suggestions found its way into federal legislation, though President Bush did sign an executive order implementing some of the procedural ideas. But in legal reform Quayle and Bush found an agreeable, albeit minor, political issue, one that has since become a staple of Republican politics. In the presidential election of 1992 President Bush's first television ad mentioned "legal reform," and his campaign criticized Bill Clinton and the Democratic Party for accepting massive contributions from plaintiff lawyers. Republicans even picketed Bill Clinton with signs reading "Stop the Trial Lawyers' Takeover of the White House." Newt Gingrich made "Common Sense Legal Reform" the ninth plank in his Contract With America and pushed various tort reform bills through the House. In one of the highlights of his otherwise uninspired 1996 presidential campaign, Robert Dole joked after falling from a stage during a campaign event that trial lawyers had begun calling him on his cell phone even before he hit the ground. And George W. Bush, proud to be an enemy of plaintiff lawyers, pointed to tort reform, while campaigning for the presidency in 2000, as one of his major accomplishments as governor of Texas. Dole and both Bushes have mentioned litigation reform in their televised debates, and the Republican platform since 1992 has contained antilitigation language.
Although their antilitigation rhetoric sweeps broadly, these politicians are in fact mainly focused on one species of lawsuit, the personal injury claim. They tend to ignore other, more common forms of litigation—over contracts, property disputes, and family issues. Business-to-business contract disputing, for example, is at least as important a source of lawsuits as tort, but in the litigation debate this is obscured. In 2000, tort lawsuits constituted 00 percent of the case load of a sample of state courts; contract cases amounted to 00 percent. Yet when politicians, pundits, and journalists criticize "litigiousness," they are speaking almost invariably about personal injury lawsuits.
Why does tort litigation receive such a disproportionate share of attention? The simplest explanation is that those on the receiving end of tort lawsuits—business groups, governments, and professional organizations—have the means and the incentive to publicize their discontents. These powerful interests have set the agenda both for politicians and the media. Other forms of litigation—for example, contractual disputes—have business interests on both the giving and receiving ends, creating a much more ambivalent attitude. Moreover, many common types of litigation—family disputes, for example—don't involve business interests at all. It is only those forms of litigation in which powerful interests appear solely as defendants—tort, civil rights, and environmental lawsuits—that are most visibly attacked.
Even in this grouping, however, tort litigation seems to get the lion's share of the attention. Aside from the interests behind it, there seems to be a special resonance to complaints about personal injury law. David Engel has argued that tort litigation stories serve as symbols of community disintegration in a way that anecdotes about, for example, contract disputes cannot. Engel studied attitudes toward tort law in a rural county in the Midwest. In the view of Engel's subjects, plaintiffs in tort lawsuits deserved special scorn because they had used the coercive powers of the state to get money they did not earn from defendants who never agreed to assume responsibility for their injuries. Thus for Engel's subjects, as for many Americans, stories about tort litigation symbolize the decline of personal responsibility in society. Moreover, tort stories are dramatic and easily understood, making them easily digestible fodder not just for everyday gossip but also for the news and entertainment media. The story of Stella Liebeck, who had the infamous encounter with McDonald's coffee, radiated through public discourse because it dramatically illustrated what "everyone knows"—that Americans routinely sue others for accidents they themselves are responsible for, that big corporations are excessively punished because they are "big pockets," and that tort plaintiffs are overcompensated by runaway juries. Indeed, aspects of the Stella Liebeck story that were inconvenient to this portrayal—such as the fact that Liebeck eventually settled for roughly one-fifth of the widely publicized $2.9 million jury verdict, that her burns were horrifyingly severe, or that McDonald's coffee had previously scalded hundreds—were widely ignored.
The notoriety of tort litigation, combined with the powers of persuasion of corporate and professional interests, has put personal injury lawsuit reform at the top of the antilitigation agenda. Yet the range of antilitigation politics sweeps much more broadly than tort suits. Business-to-business disputing, though not the subject of television sitcoms or Republican platform planks, has been the target of several antilitigation efforts, especially alternative dispute resolution, discussed below. Indeed, some of the more obscure antilitigation reforms, though not the stuff of advertising campaigns or presidential speeches, are among the more significant.
Four Types of Antilitigation Efforts There are a vast array of antilitigation efforts spanning varied policy areas and levels of government, but they can be usefully divided into four basic forms: (1) discouragement, attempts to discourage plaintiffs and so reduce litigation; (2) management, attempts to make the disputing process more efficient and harmonious; (3) replacement, attempts to replace litigation with some other problem-solving device; and (4) resistance, opposition to new forms of litigation (see Table 1.1). Each form creates a distinctive politics. Of the four types, discouragement and management efforts have been the most visible, garnering the most media attention—and the most hyperbolic rhetoric. Yet as I argued in the introduction, replacement efforts and the battles they create expose more fully the roots of America's distinctively court-centered public policy style because they represent more fundamental attacks on litigation as a problem-solving device.
The Partisan Politics of Discouragement Discouragement reforms take the most familiar and straightforward route to limiting litigation: they aim to discourage plaintiffs from bringing lawsuits. They do this by making lawsuits either harder to bring, harder to win, or less rewarding for the plaintiff. The politics of discouragement is similarly straightforward. Groups aligned with plaintiffs fight groups aligned with the defendants. Discouragement battles are thus highly partisan, with most Republicans on the antilitigation side and most Democrats lined up with the plaintiffs. These are struggles over distributional justice—who gets what—with dollars and the resources of the judiciary at stake. Proponents do not typically question the utility of litigation itself but argue that plaintiffs with weak claims are abusing the legal system.
The most prominent of all discouragement efforts, indeed of all antilitigation efforts, is the tort reform movement. A "tort" is an injury. Plaintiffs in tort cases seek monetary compensation for their injuries, punishment for their injurers, and some reassurance that injury-producing conduct will be deterred. The tort reform movement argues that the liability system is out of control, swollen with ridiculous claims, and that the jury system has in effect produced a lottery. Tort reformers promote an array of reforms aimed at making tort litigation less enticing for plaintiffs: barriers to filing a claim, an expansion of defenses, and limits on the amounts and types of awards. With a broad base of support among business and professional groups, the tort reform movement has been churning tort law now for more than two decades.
The tort reform movement is a huge political enterprise. Nearly every large company, trade association, and professional group is involved at some level. Since the drive for tort reform began in the 1970s, these groups have become more and more organized, creating coalition organizations to coordinate their activities. The American Tort Reform Association (ATRA) helps coordinate and publicize state tort reform efforts. ATRA's membership includes Fortune 100 corporations, professional groups, insurers, small companies, nonprofit organizations, and a few units of government. ATRA serves as a clearinghouse for a network of forty state groups, providing them briefing materials, model bills, polling research, witnesses, and speakers and publishing several periodicals that cover their efforts. ATRA's publicity efforts are considerable, with press briefings, television and radio commercials (featuring Jack Kemp and George McGovern), a documentary (hosted by Walter Cronkite), an in-flight video, a website featuring "loony lawsuits," posters, pamphlets, and bumper stickers.
For a time the largest coalition in the national tort movement was the Product Liability Coordinating Committee (PLCC), which at one point had an estimated budget of $3 million and a membership of 700,000 businesses and trade associations, including the Business Roundtable, the Chamber of Commerce, the National Association of Manufacturers, and an estimated 60 percent of the Fortune 500 companies. Since the defeat of sweeping product liability legislation in the late 1990s, the PLCC has become inactive, but there are several other national coordinating bodies. The Civil Justice Reform Group is a separate group of general counsel from sixty of the nation's one hundred biggest companies who channel funds to various antilitigation organizations. The Health Care Liability Alliance campaigns for medical malpractice reform laws: the Coalition to Eliminate Abusive Securities Suits successfully lobbied in the 1990s to limit shareholder litigation against companies.
These groups are just the tip of the iceberg. Most tort reform activities are carried out by individual businesses, trade associations, and state tort reform organizations. The American Medical Association, for example, has crusaded for a variety of tort reforms over the past two decades. The U.S. Chamber of Commerce has made tort reform, especially legislation to restrict class action lawsuits, a priority. In 1998 the chamber created the Institute for Legal Reform, which has sponsored conferences and published reports on such matters as legal fees, product liability law, and judicial elections. Among the businesses, one of the most active is Aetna, an insurance firm whose interest in civil justice litigation is considerable: it defends thousands of lawsuits each year. Aetna is a member of national tort reform organizations, but it has also conducted its own antilitigation lobbying and advertising campaigns. In addition, Aetna has funded academic symposia, conferences, and research on tort law at the Rand Institute of Civil Justice, the Brookings Institution, the Manhattan Institute, and the American Law Institute. Although Aetna is unusually active, its antilitigation activities are hardly unique. Many companies and trade and professional associations fund antilitigation lobbying, advertising, and research. On the research side, they have helped fund a plethora of antilitigation research (see note 16). Add this to the efforts of the coalition organizations, and the tort reform movement seems quite formidable.
Yet tort reformers have been largely frustrated in their efforts in Congress. Their successes have largely come through state legislatures, and even there, they have often been thwarted by judicial rulings overturning tort reform laws on state constitutional grounds. The tort reform movement may have had its greatest impact outside the legislative arena, where it has apparently persuaded judges and juries to be more skeptical about personal injury claims. Indeed, tort reformers have helped to reshape public discourse about litigation, undermining the heroic view of lawyers and lawsuits that has always competed in the American mind with more unsavory images of the legal profession. Thus tort reformers have made steady gains in the cultural war over litigation even as they have often lost particular political and legal battles.
Federal tort reform efforts began with a Nixon administration report on medical malpractice litigation in 1973. In the following years, the Ford, Carter, and Reagan administrations sponsored reports proposing antilitigation legislation. Federal product liability legislation, first introduced in the mid-1970s, has over the years varied in content. The earliest bills sought to undo the strict liability standard that the California Supreme Court had first adopted; others have provided for caps on damages and expanded defenses. None of the bills has become law, despite strong support from Republicans and some Democrats. Until 1994 the Democrats' control of Congress and use of filibusters prevented any bill from advancing. After the "Republican Revolution" of 1994 the combination of Democratic opposition, the threat of filibuster, some defections by Republicans, and Clinton administration opposition kept product liability bills from being enacted. The closest any of the bills came to passage was in 1996, when Congress failed to override a Clinton veto. The George W. Bush administration's enthusiasm for tort reform has been diminished by the Democrats' control of the Senate and perhaps by the political fallout from the Enron scandal.
Federal medical malpractice tort reforms have also failed to make any headway, despite much discussion. Between 1990 and 1994 forty-six medical malpractice reform bills were introduced into Congress, most of them involving discouragement reforms. There was some talk about putting a cap on malpractice damages in the Clinton health care bill, but ultimately the bill had only minor medical malpractice provisions.
Indeed at the national level, the tort reform movement has been able to enact only relatively minor laws. These laws, passed during the Clinton administration, limited the liability of small airplane manufacturers, restricted company shareholder lawsuits, immunized volunteers (but not the organizations they volunteer for) from litigation, taxed tort awards for emotional distress and punitive damages, protected those who donate food to shelters from liability, capped tort liability for Amtrak at $200 million per accident, restricted medical malpractice claims against cruise ship operators, protected producers of raw materials for medical products from some suits, and limited liability claims arising from the "Y2K" computer scourge. While the number of laws passed might seem impressive, these measures were limited in scope and effect, relatively small-scale victories scattered amongst a series of major defeats. Observers suggest several explanations for the failures of the federal tort reform effort: conflicts among the business groups advocating the reforms, concerns about federalism, and most important of all, the powerful opposition of plaintiff lawyer groups. Whatever the reason, the major legislative successes of the tort reform movement thus far have come at the state level.
The first major wave of state tort reform was in the mid-1970s, when medical malpractice insurers rapidly raised their rates and exited some markets. The result was labeled a "medical crisis" in many states, with doctors finding it difficult to get malpractice insurance. Some California doctors even went on a brief strike to dramatize their plight. Legislatures responded with a flurry of tort reforms. Between 1975 and 1978, fourteen states passed laws encouraging arbitration, twenty-nine created screening panels for lawsuits, twenty limited attorney contingency fees, fourteen put monetary caps on damages, and nineteen restricted the collateral source rule.
The second wave of tort reform, which commenced in the mid-1980s, was much broader, going beyond medical malpractice to all areas of personal liability. Here again a major stimulus was a rapid rise in liability insurance rates together with reports that day care centers, playgrounds, and other facilities were closing because of the lack of affordable insurance. Between 1985 and 1988 sixteen states capped "pain and suffering" damages, twenty-eight limited punitive damages, twenty restricted the collateral source rule, and thirty modified their joint and several liability rules. In 1986 alone, forty-one of the forty-six legislatures who met passed some type of tort reform.
After several years of relative calm, a third wave of tort commenced, possibly spurred by state-level Republican gains in the 1994 elections. In 1995 eighteen states passed tort reforms, including extensive reform packages in Oklahoma, Illinois, Indiana, and Texas. Between 1995 and 1997 fourteen states limited punitive damages, thirteen modified their joint and several liability rules, and eight made significant changes in product liability law.
Research suggests that some of the measures passed in the first two waves of tort reform, particularly the caps on damages, have modestly reduced lawsuits, damage awards, and liability insurance premiums. Many of the tort reforms, though, seem to have had little or no effect. But even where the tort reform movement has fallen short in the legislatures, it may be having indirect effects on the judicial process. The data are far from conclusive, but there are indications that publicity about the "litigation explosion" may be changing the behavior and attitudes of judges and juries. Research has found that jurors firmly believe that there has been a "litigation explosion" and are deeply suspicious of plaintiffs in tort lawsuits. Another study found a "quiet revolution" in products liability, with judges rolling back some of the litigious policies enacted in the 1960s, seventies and early eighties, possibly in reaction to the publicity generated by tort reformers. As a result of the shift in doctrine, plaintiffs are faring worse, and claims have been dropping. Thus the gains of the tort reform movement may go well beyond the passage of legislation.
Thanks to the enormous material interests behind it, tort reform dominates public discussion of litigation politics. But tort is just one area in which discouragement policies have been debated or enacted. Consider some other examples:
Criminal Justice The chief antilitigation effort in criminal law recently has been the move to restrict habeas corpus lawsuits, which critics say give prisoners and death row inmates too many chances to appeal, resulting in long delays. In 1996, in the wake of the bombing of the Murrah Federal Building in Oklahoma City, President Clinton signed the Anti-Terrorism and Effective Death Penalty Act, which included a provision limiting death row inmates to "one bite of the apple," a single habeas corpus appeal. The Supreme Court upheld this statute against a constitutional challenge—a ruling in line with several previous Court decisions limiting the right to appeal. A second law, also passed in 1996, the Prison Litigation Reform Act, seeks to discourage civil suits by prisoners and to reduce judicial control over the administration of correctional institutions. It requires prisoners to pay a fee when filing a civil suit and penalizes prisoners who file lawsuits deemed frivolous with the loss of "good time" credits toward early release from prison. Thus Congress has attempted to discourage prisoner lawsuits, one the largest and fastest-growing categories of federal litigation.
Civil Rights When the U.S. Supreme Court in 1989 released a string of rulings that had the net effect of discouraging plaintiffs in civil rights cases, Congress reacted with an encouragement law. The 1991 Civil Rights Act undid the Court's decisions but went beyond this to expand the use of jury trials and increase the kinds of damages available to plaintiffs in discrimination lawsuits. These changes have in turn generated a host of horror stories about discrimination litigation, and in Congress discouragement bills have been introduced to limit damages and institute a "loser pays" system in civil rights lawsuits.
Environmental Policy Many American environmental statutes allow citizens to either sue regulators for being too lax in their enforcement efforts or to bypass the regulators entirely and sue alleged polluters directly. The citizen lawsuit provisions have been criticized for misdirecting enforcement and for creating an undeserved windfall for environmental groups who win damages lawsuits. Discouragement reforms that limit clean air and clean water lawsuits have, however, failed to attract much support. George W. Bush's proposal to limit the sweep of citizen lawsuits under the Endangered Species Act was predictably pilloried by environmental groups.
Administrative Law Across many policy areas, including the environment, courts since the 1960s have played a major role in the administrative process. Those dissatisfied with an agency ruling found that they could flee to the courts for a second opinion. Critics argue that judges should not second-guess the decisions of agencies and that the process of litigation greatly hinders administrative regulation. The struggle to discourage litigation has primarily been carried out in the courts, where the U.S. Supreme Court's decision in the 1984 Chevron case was seen as a signal to lower courts to grant more discretion to agencies. Whether the courts have taken the hint or the Supreme Court itself has become more deferential to agencies is unclear.
Funding for Litigation One seemingly straightforward way to discourage litigation is to eliminate programs that fund lawsuits. Yet antilitigationists have been largely unsuccessful in this effort. For example, attempts to rid citizen lawsuits of attorney fee provisions have gotten nowhere. Funding for legal aid, however, was slashed after the "Republican Revolution" of 1994 and subjected to various restrictions.
Civil Procedure Perhaps the most obscure discouragement struggles occur over efforts to reform civil procedure. In fact, despite its musty image, federal civil procedure has in recent years been a quite contentious realm, with particularly heated debate over class action lawsuits. The animating principle of procedural reform in recent years has been to speed up processing of cases by limiting litigation. Reforms regarding class actions, frivolous cases, and discovery have all attempted to reduce litigation. Many of these reforms have, however, met with opposition, and some have been significantly modified en route to enactment, often because of opposition within the bar.
Discouragement efforts can result in significant reductions in litigation. Research suggests that caps on damages in tort litigation, for example, reduce both the number of cases filed and the size of damage awards. But even where tort reform and other discouragement efforts succeed in reducing cases and damage awards, they do not fundamentally dislodge a system of social decision making based on the model of adversarial legalism. In the adversarial legal model, remember, issues are organized as disputes between parties, the parties have the burden of invoking and enforcing the rules, the decision makers are not tightly bound to a higher authority, and the rules themselves are constantly in dispute and evolving. Discouragement policies do not attempt to transform these fundamental aspects of American court-based public policy. Thus, despite the antilitigation rhetoric that accompanies them, discouragement efforts are not an attack on litigation as a problem-solving device. Discouragement efforts seek to lower the volume of litigation, not change the channel.
The Muted Politics of Management Management reforms aspire to make the disputing process smoother and more efficient. They streamline disputing through techniques such as arbitration, mediation, conciliation, and various measures aimed at resolving issues with less conflict. By definition, management reforms are those that do not obviously favor plaintiffs or defendants; thus in this type of reform there is little conflict between plaintiff and defendant groups and low partisanship. The conflicts that do arise usually pit groups within the legal system against each other on matters either of philosophy or turf. In comparison with discouragement politics, which is often partisan and strident, management reforms typically generate little controversy outside the bar.
On the surface, management efforts seem far more radical than discouragement. Some proponents of management reforms envision a wholesale transformation of social disputing, remaking a process that has been formal and conflict ridden into one that is informal and problem solving. Others, less idealistic, simply see in management reforms a way to avoid the transaction costs associated with litigation. Whatever the vision behind them, however, management efforts are not an attack on the adversarial legal model that characterizes the American legal system. They are aimed simply at making the legal system work more smoothly.
One set of management efforts involves the assortment of procedural devices collectively known as "alternative dispute resolution." ADR is not a recent innovation. Jerold Auerbach has traced how various religious communities used mediation and arbitration in colonial America, and the history of these devices is older than adjudication itself. Commercial arbitration became an important form of dispute resolution in the business world shortly after World War I. But the shift toward alternative dispute resolution in the 1970s and 1980s was more broadly based.
ADR proponents are a varied bunch, from 1960s community activists to 1990s corporate CEOs. The only thing that truly unites the ADR "movement" is dissatisfaction with traditional litigation, and even this dissatisfaction takes different forms. For many of the lawyers and judges at the Pound Conference, which provided a major stimulus to the ADR movement, the primary problem was an overload of the courts. Diverting some cases to other venues would protect the quality of traditional adjudication by keeping the courts from being overwhelmed with litigation. Similarly, Christine Harrington, in her study of the ideology and practice of ADR, sees support for arbitration as arising from criticisms of lower courts as lacking the capacity to deal effectively with "low-level" disputes.
But there are other themes in the move toward ADR, as well. Supreme Court chief justice Warren Burger, an antilitigation crusader, spoke at the Pound Conference of the "damaging excesses of the contentious spirit" and the need for lawyers to "fulfill their historic function as the healers of society's conflicts." Burger's articulation of the value of healing and civic peace echoes in some respects the communitarian views of left-wing proponents of community mediation, who argue that indigenous forums offer a richer, less adversarial, and more particularized brand of justice. Beginning in the 1960s, they advanced community mediation as a form of community empowerment. Much of the support for ADR, however, is based on far more prosaic concerns, principally cost and efficiency. ADR, proponents say, can resolve disputes in less time and with lower cost than traditional litigation.
ADR in its many forms is the most prominent of management efforts, but the category includes any reform premised on smoothing the disputing process, from community dispute centers that use mediation to resolve "low-level" disputes, to court-annexed arbitration programs, to "rent-a-judge" and other private dispute resolution services, to the many techniques used in workplaces to resolve complaints through "internal dispute resolution." Some other forms of management include the following.
Mandatory ADR Most ADR programs are voluntary: both parties must choose them after a dispute arises. This is undoubtedly one of the main reasons they attract so little controversy. Mandatory ADR has, by contrast, proven highly controversial. Employment, consumer, and commercial contracts increasingly include provisions requiring arbitration of any disputes that might arise between the parties. Critics say that the arbitration systems built into contracts are often biased against plaintiffs and that one should never be asked to sign away the "right to sue." To the extent that mandatory arbitration tilts to the benefit of defendants, it is really a discouragement reform in disguise, and the politics it creates looks just as partisan and fierce as the battle over tort reform. Bills to ban mandatory arbitration have been introduced in Congress, and legal challenges to these contracts continue.
Settlement Incentives Some "fee shifting" proposals penalize parties who refuse an early settlement offer only to receive a verdict at trial that is similar or less favorable. Under these proposals, the refusing party is responsible for all the legal costs incurred by the offering party. Another way to encourage parties to resolve their cases more quickly and efficiently is to teach and encourage judges to "manage" their cases more aggressively.
Substantive Efficiency Reform Perhaps the most common way to streamline disputing is to change the law under which disputes arise so as to make it clearer. Changes in statutory language can eliminate ambiguities and so limit litigation. Jeb Barnes, writing about the politics of bankruptcy reform, labels this "substantive efficiency reform." As Barnes suggests, this type of reform is commonplace; it occurs whenever legislators codify the law in order to clarify and standardize it, as with the Uniform Commercial Code.
Management reforms can have a significant effect on the amount and intensity of litigation. But as with discouragement policies, management reforms do not generally dislodge a system of social decision making based on the model of adversarial legalism. Instead they diminish the scope of issues in dispute or nest an alternative set of procedures within an adversarial legal system. Some of the formalism and adversarialism of litigation can be reduced, but the bilateralism, privatism, decentralization, and fluidity characteristic of the adversarial legal model are all retained. Social issues are organized as disputes among private parties resolved by a relatively independent decision maker using an evolving set of rules. Thus although management reforms may streamline the process of settling claims, management is not the frontal attack on litigation that proponents sometimes claim.
The Complex Politics of Replacement Replacement efforts, by contrast, do involve a radical transformation of social decision making. Replacement eliminates an entire species of litigation and substitutes some other problem-solving device. The dispute between plaintiff and defendant becomes a social problem to be resolved through various nonlitigious mechanisms, generally compensation funds, bureaucratic regulation, or decision making by experts; the aim is to eliminate the original judicial dispute. All the core attributes of the adversarial legal model—bilateralism, privatism, decentralization, and fluidity—are attacked in replacement schemes.
The central feature of replacement politics is the effort to bring groups associated with both plaintiffs and defendants together to support a mechanism to replace litigation. This difficult task is taken up by what John Kingdon has called a "policy entrepreneur," someone who tries to sell others on a favored solution to a social problem. The pitch of the policy entrepreneur who retails replacement reforms typically features two selling points, lower transaction costs and greater certainty. Transaction costs can be reduced by cutting out the middleman, the lawyer, so that plaintiffs and defendants can jointly capture the fees that litigation would otherwise eat up. Certainty can be increased by eliminating some of the sources of dispute between the parties and by replacing juries and judges with more tightly bounded decision makers. This is an appealing pitch, but the odds are against the policy entrepreneur who peddles replacement reforms, simply because bringing together groups associated with plaintiffs and defendants is so difficult. The two sides usually share little except great distrust for one another, making any alliance in support of replacement reforms hard to assemble and easy to take apart. And any such alliance has a natural enemy: lawyer interest groups often vigorously oppose replacement reforms.
The classic replacement reform is a no-fault system. In no-fault systems, accident victims generally avoid the trouble of litigation because they do not have to make a tort claim against another party. Instead, they simply apply for compensation from their own insurer, the way a home owner collects after a fire. This, according to no-fault supporters, avoids both the uncertainties and the transaction costs associated with tort litigation. No-fault systems, whether funded by private insurers or by public agencies, socialize the cost of an injury, thereby eliminating one of the basic motivations for bringing a lawsuit.
In addition to no-fault systems, the replacement category also includes efforts to strip the judiciary of decision-making responsibilities and lodge them instead in some other body, usually a bureaucratic agency or a group of experts. Thus replacement is a broad category that includes the following.
Workers' Compensation Worker's compensation laws, which spread through the states during the Progressive era, remain even today the most significant of all antilitigation reforms. Workers' compensation is the original no-fault reform. It replaced tort litigation with a system of employer insurance: instead of suing their employers for negligence, injured employees in a workers' comp system need only apply for compensation from the employer's insurer. Workers' compensation laws were supported by both labor and business groups. Each found the tort system unpredictable and wearisome and hoped that a social insurance scheme would be more efficient and equitable. In practice, workers' compensation has not eradicated workplace injury litigation. Over time, workers' compensation systems have come to look more litigation-like, with lawyers playing a larger role, and the system itself has become a constant target of reform. Moreover, not all workers are covered by workers' compensation laws, and efforts to extend the system have been stymied. Even so, workers' compensation can rightly be considered the "mother" of all antilitigation reforms: it is hard to imagine how the legal system would handle the volume of tort litigation that would undoubtedly move through the courts in the absence of a workers' compensation system.
The latest replacement reform is the September 11th Victim Compensation Fund, enacted into law just eleven days after the terrorist attacks on the Twin Towers and the Pentagon. The fund provides both economic compensation and limited pain-and-suffering payments to those physically injured in the attacks and to the families of those killed. The fund is no-fault in that claimants need not prove, as they would in court, that some defendant (the airlines would be the most obvious choice) is liable for their injuries. The office of the special master, Kenneth Feinberg, decides the amount of compensation based on guidelines that the office developed. The special master's decision cannot be appealed, and those who apply to the fund give up their right to sue in court. (Fund claimants may, however, still sue Al Qaeda and Osama bin Laden, a right that Congress specifically granted after critics pointed out that the original September 11 law seemed to rule this out.) Those who forgo the fund can bring a personal injury lawsuit, but Congress has made this option less attractive: the airlines can be sued only up to the limit of their insurance coverage (about $6 billion total), and other potential defendants—including the maker of the planes, the airports from which the planes took off, the city of New York, and the owners and operators of the Twin Towers—have been granted limited liability.
No-Fault Auto Insurance Proponents of no-fault auto insurance drew inspiration from workers' compensation and extended its logic to disputes over auto accidents. Starting with Massachusetts in 1970, twenty-four states adopted some form of no-fault auto insurance, and Congress came close to enacting a federal policy. Since 1975 the spread of no-fault auto insurance has largely been halted. Chapter 3 details one of the fiercest struggles over no-fault in recent years, over a series of legislative and ballot proposals in California.
Other No-Fault Systems Besides automobile insurance, no-fault proponents can point to a few other relatively minor successes. Two states, Florida and Virginia, have adopted no-fault laws governing injuries to newborn babies, a reform motivated in part by what was called a medical malpractice insurance crisis in those states. The Black Lung Benefits Act compensates coal miners for mining-related respiratory illnesses. The Radiation Exposure Compensation Program provides payments to those injured by exposure to uranium or to nuclear weapons tests. The Energy Employees Occupation Illness Program pays benefits to those who have developed cancer as a result of working for the Department of Energy. With the Price-Anderson Act, Congress created a partial no-fault system for "extraordinary nuclear occurrences," though the system retains aspects of traditional tort litigation. Finally, there is a no-fault system for compensating children injured by vaccines, whose creation is the subject of chapter 4. No-fault systems have been proposed for nearly every major category of tort lawsuit, including those arising from medical malpractice, the disposal of hazardous wastes, and injuries due to products such as asbestos and cigarettes. These proposals have, however, not gotten very far.
Bureaucratization Efforts to replace litigation with bureaucratic decision making have also encountered strong opposition. An attempt to create a federal bankruptcy agency to replace most bankruptcy litigation was rejected by nearly every major interested party. A proposal to replace judicial determination of medical malpractice with an administrative system has not received much consideration, despite the American Medical Association's endorsement. Congress has, however, passed a series of laws that have bureaucratized the traditionally judicial process of determining and collecting child support payments.
Unlike discouragement and management efforts, replacement policies are a direct attack on litigious policies and the model of adversarial legalism. Replacement policies aim to uproot each of the elements of the adversarial legal model, usually substituting a scheme based on a bureaucratic model. The bilateralism and privatism of the adversarial legal model is eliminated; issues are no longer organized as disputes between parties. The decentralized decision makers who apply fluid standards in the adversarial legal model are replaced either by experts using their professional judgments or, more commonly, bureaucrats applying standardized rules. Because replacement reforms trade litigation for another problem-solving device, struggles over such reforms necessarily involve consideration of the strengths and weaknesses of the adversarial legal model. Thus battles over replacement reforms are the most theoretically significant of all antilitigation efforts.
The radicalism of replacement is limited, however, in two ways. First, American replacement reforms have typically been partial, allowing some types of litigation to continue. Even the most radical American no-fault auto laws, for example, allow lawsuits in cases of severe injury. Second, even the more sweeping replacement schemes are usually eroded over time. Phillipe Nonet's classic study of the workers' compensation program showed how what had been envisioned as a nonadversarial, bureaucratic program evolved into a much more formal, lawyer-driven process. Creative lawyers can find ways in which to get around replacement schemes and bring lawsuits. Plaintiff lawyers, for example, have won the right to sue for some workplace injuries notwithstanding the barriers created by workers' compensation laws. Today, workers' compensation programs have drifted away from their bureaucratic design toward a more adversarial legal model. In the United States, with its aggressive and creative bar and a judiciary receptive to novel claims, the law never stands still, so that replacement systems are often eroded. Even so, replacement efforts remain the most fundamental of all attacks on litigation.
The Uncommon Politics of Resistance Resistance efforts attempt to block the creation of new forms of litigation. Unlike the other three categories, this is a relatively uncommon occurrence. Laws that create new forms of litigation are often resisted, but rarely because of worries about the adversarial legal form of social decision making. To take a famous example, southern conservatives in the 1950s and 1960s resisted civil rights laws on many grounds, but doubts about the efficacy of an adversarial legal approach to the problem of racial justice were doubtless far down the list of their concerns. Because resistance efforts—those aimed directly against the adversarial legal model as embodied by the American legal system—are relatively uncommon, it is difficult to generalize about the politics they generate.
One might expect those who decry the "litigation explosion" to make strong efforts to halt the creation of new types of lawsuits. Yet new forms of litigation are constantly being born. Courts create new species of lawsuits simply by authorizing the novel claims of litigants. When, for example, a federal judge decided that bumped airline passengers could sue for damages, a new form of litigation came into being. Of course, judges also routinely deny attempts to bring new kinds of claims like these.
Moreover, many new forms of litigation arise not from the judicial system but from legislatures. American legislatures often authorize new species of lawsuits. Consider just a few examples:
ï The so-called "plant-closings" law, enacted during the George H. Bush administration, gives employees and their unions the right to sue companies who fail to give sixty days' notice of an impending layoff.
ï Landlord-tenant laws enacted by several states allow families to sue landlords who fail to remove leaded paint from apartments.
ï Drug dealer liability laws passed in several states grant individuals, including drug users, the right to sue dealers for the damage their drugs create.
ï The 1993 Violence against Women Act created a new right to sue in federal court for various acts of discrimination. (This provision was subsequently struck down as unconstitutional by the Supreme Court.)
Of course, not all efforts to create new rights to bring lawsuits are successful; some become objects of controversy. For example, a bill granting landowners the right to sue for compensation when federal environmental laws diminish the value of their property was stalled in Congress in 1995, though several states have passed similar laws. President Clinton's attempt to create a new right for parents to sue employers who discriminate against them foundered in Congress. In the most prominent of all resistance struggles, policy makers have been wrestling over a "patient bill of rights," a law that would make it easier for patients to sue HMOs in disputes over medical treatment. Not surprisingly, the HMOs have strongly opposed this proposal.
Even when efforts to create new forms of litigation do encounter opposition, the focus is typically on the goals of the law, not the mechanism of litigation itself. Environmentalists, for example, oppose the landowner rights laws not because they have a particular aversion to litigation but because they fear that such laws will cripple environmental regulations. Opposition to new forms of litigation rarely centers on concerns about litigiousness, and it is even rarer for an opponent to counterpropose a nonlitigious mechanism for realizing the same goal. Thus the resistance category is surprisingly small.
One case that clearly fits within the category is resistance to "children's rights." Some supporters of children's rights, notably Hillary Rodham, favored granting children legal representation in divorce proceedings and even envisioned lawsuits aimed at overturning laws and policies that discriminated against children. Critics argued that giving children the right to sue could create legal chaos and that the interests of children could be better served in other ways. The critics have thus far prevailed. Indeed, even the American Academy of Matrimonial Lawyers—a group seemingly well positioned to benefit from the expansion of children's rights—has adopted guidelines that generally disapprove of giving children legal representation during divorce.
As this example indicates, not every proposal to extend legal rights to new groups comes to fruition. Laboratory monkeys, after all, have yet to receive legal representation, despite the pleadings of animal rights activists. American policy makers occasionally conclude that not every social problem has a litigious solution. Still, there are many more instances of creation than of successful resistance, an observation that is in itself theoretically significant. At a time when so many voices have risen up against litigiousness, how can new forms of litigation be created without much opposition? That question is addressed in the next chapter, on the creation of the Americans with Disabilities Act. In any case, resistance efforts, though theoretically significant, play only a small part in the attack on litigation.
Defenders of Litigation My brief review of some discouragement, management, replacement, and resistance efforts suggests the formidable array of forces aligned against litigious policies. Business and professional interests constitute the main political actors in the attack on litigation, but antilitigation reformers range across the ideological spectrum, from conservative politicians, such as Dan Quayle, to left-wing proponents of community mediation.
The defense of litigation, by contrast, is a task performed mostly by those on the left side of the American political spectrum, a fact that suggests the role of litigation in American politics. As in other economically advanced nations, the left in the United States has struggled in recent years to defend the welfare and regulatory state from attack. But in the United States the left has had an additional task: defending legal rights and litigious policies. Indeed, when forced to choose, American liberals sometimes pick litigation and legal rights as a mechanism for realizing their policy goals over regulation and bureaucratic welfare approaches, a choice in keeping with the antistatist tendencies of all sides in American politics. Judicially enforced rights are a means by which liberals can promote public action on social problems without seeming to augment "government."
This ideological outlook has a correlate in the political base of the left within the United States. In many Western democracies, lawyers work primarily within the state; law is conceived as "the profession of the state." Dietrich Rueschmeyer concludes that because of this, the bar in nations such as Germany has a "civil service orientation." But in the United States the bar is not so closely tied to the state; lawyers are more closely allied with their clients, and to a large extent the bar divides politically along the lines of its clientele. As a result, the Democratic party has become the party of plaintiff lawyers—attorneys who specialize in bringing lawsuits, particularly on behalf of individuals—and the plaintiff bar has become a significant source of campaign finance for the Democrats. Moreover, the Democratic party is the home of public interest lawyers, who see litigation as a tool by which to change society. Public interest lawyers have had prominent roles in most left movements within the United States. The feminist, consumer, environmental, and civil rights movements were all had lawyers in leadership positions, and each of them has used legal rights as a primary tool in their struggles. Thus prolitigation lawyers have become an important part of the Democratic party, and the defense of litigation has become a significant enterprise of the left.
Academics Prolitigation forces have a helpful, though underutilized, base in academia. Academics, for example, effectively counterpunched against the claims of Dan Quayle and the antilitigation researchers on whom he has relied. Marc Galanter, a law professor at the University of Wisconsin, has become a kind of one-man litigation "truth squad," demonstrating that many of the figures widely quoted by tort reformers—that the United States has 70 percent of the world's lawyers or that tort litigation costs $300 billion annually—are vast exaggerations that were more or less made up. These figures still find their way into the media, but Galanter and several other sociolegal researchers have managed to draw attention to some of the defects in the tort reformers' case. Within academia, and particularly among those who most closely study tort law in action, Galanter's critical view of the tort reform movement prevails. Galanter and his fellow critics are hardly unalloyed devotees of the tort system, but they find little evidence for claims of a "litigation explosion," and they dismiss the lawsuit horror stories regularly generated by tort reformers as unrepresentative anecdotes. In the broader public debate, though, Galanter and other academic tort reform critics are outfinanced and often outgunned. Their research typically appears in specialized academic publications and is only occasionally discussed in the popular media. Moreover, there is no "prolitigation" think tank to rival the likes of the Manhattan Institute's Center for Legal Policy, which supports the research of Walter Olson and Peter Huber, the "intellectual gurus of the tort reform movement," as the Washington Post once put it. Even so, defenders of the tort system have plenty of academic research to draw on to support their position.
Tort is not the only field where academics are highly critical of antilitigation efforts. Alternative dispute resolution has been subjected to a torrent of criticism by sociolegal scholars, and prolitigation academics are still active in fields such as the environment, civil procedure, and administrative rule making. One law professor, Owen Fiss, goes so far as to take an unfashionable stand "Against Settlement," and another, Judith Resnik, even casts a critical eye on efforts by judges to expedite the settlement of cases, seemingly one of the most innocuous of all the antilitigation schemes.
Lawyer Interest Groups Having some academics and some facts and figures on one's side is nice, but in American politics it is of course much more important to have interest group support. The problem for defenders of litigation is that the constituency most affected by many antilitigation reforms is amorphous: people who in the future will want to litigate their disputes. Those people do not know they are members of such a group, so one cannot expect any help from them. Those who have already litigated their disputes are not likely to organize either. The problem of undermobilization is particularly acute in areas where plaintiffs are likely to be "one-shotters"—fields such as tort and civil rights, in which litigation is usually a once-in-a-lifetime experience for the plaintiff. Who would represent such an unorganized constituency?
One answer, of course, is lawyers. Like many defendants, some lawyers are "repeat players," who are regularly involved in litigation and thus have a strong incentive to get involved in litigation politics. Then too, lawyers may be inclined by their socialization into the profession to be supportive of litigation as a means of resolving disputes.
Thus lawyers groups are central figures in many anti-litigation battles. The American Bar Association and its state analogues, the main organization of lawyers in the United States, is active on many fronts. On one hand, the ABA opposes federal tort reform, no-fault auto insurance, limitations on habeas corpus, restrictions on damages in civil rights cases, limits on citizen lawsuits and many other antilitigation proposals. The ABA has also retained a long-standing concern with access to justice, supporting increased funding and expansion of the judiciary and defending legal aid to the poor. On the other hand, the ABA has been a strong promoter of alternative dispute resolution and has also supported changes in civil procedure designed to speed the processing of cases. The ABA has more than a third of the nation's one million attorneys as members, but that size can be a hindrance. Some antilitigation issues cause splits within the ABA among plaintiff and defense lawyers. Moreover, the ABA gets involved in a vast array of issues, some of them having little to with the practice of law. No more than 10 percent of its $1.5 billion lobbying budget is devoted to antilitigation legislation.
In the high-stakes tort reform debate, the ABA is a small player. On tort issues the preeminent attorney group is the Association of Trial Lawyers of America (ATLA), along with its state affiliates. ATLA is an organization of plaintiff lawyers who have an intense interest in stopping tort reforms. Thus the association's fifty-six thousand members support a larger lobbying budget than the ABA's, nearly $2.4 million in 1999. ATLA also has one of the wealthiest political action committees in the nation, contributing more than $2.6 million in the 1999-2000 election cycle; the ABA has none.
ATLA's political activities have grown as the litigation debate has developed. The group began in 1946 as an organization of attorneys concerned about the lack of effective representation of injured laborers in the workers' compensation system. Shortly afterwards, the group expanded to include the whole of personal injury law among its concerns. The plaintiff bar at the time was disrespected, disorganized, and often overpowered by better financed, better researched defense lawyers. ATLA, led by Melvin Belli, set out to raise the standards of plaintiff lawyers through diffusion of knowledge of and technique in tort advocacy. The association became an increasingly sophisticated forum for information sharing among plaintiff lawyers across the nation. Until the 1970s ATLA had little to do with legislative politics; until 1972 it didn't even have an office in Washington, D.C. But when Congress seemed about to enact no-fault auto insurance legislation, ATLA mobilized, hiring expensive lobbyists, creating its own political action committee, and eventually moving its whole operation to the capital.
Beginning with the no-fault fight, ATLA developed a disciplined legislative strategy. It stuck to bread-and-butter issues, focusing almost exclusively on tort reform. One of the association's chief arguments against tort reform was that the common law, including tort law, was a matter for judges, not the legislature and certainly not the Congress. Given this position, there was no reason for ATLA to support even favorable legislation. Thus ATLA had no "positive" agenda; it worked solely to block legislation.
With a relatively small membership and a poor public image, ATLA chose an insider approach to influencing Congress. By cultivating relationships with legislators, especially Democratic leaders on relevant committees, the organization could usually stop tort reforms from reaching the floor. The chief method of cultivation was the use of campaign contributions. ATLA's political action committee doled out millions of dollars each year, but even more money was given by individual plaintiff lawyers. ATLA didn't attempt to take on the tort reform movement with a public campaign, nor did it get involved with other issues, despite pleas from the rank and file. The architects of ATLA's strategy reasoned that, given the image of lawyers, those moves would do more harm than good, since "if the lawyers get out front, everyone beats them up." Thus they employed a "no-see-um" approach.
State-level plaintiff lawyer organizations have adopted variations on this approach, with less success. Plaintiff lawyers give millions to Democratic state legislators, making them one of the top cash constituencies of the party. Outnumbered by the conglomeration of business and professional interests on the other side, the state plaintiff lawyer associations rely on their tight relationship with the Democrats, their network of well-organized lawyers (adept, after all, in persuasion), and especially the structure of American legislatures, which creates many opportunities to block bills. At times the plaintiff lawyers have been forced into the electoral arena by ballot initiatives, where these assets have dissipated. When they have lost, the plaintiff lawyers have increasingly turned to state courts, which have overturned dozens of tort reform laws based on state constitutions.
The one advantage the plaintiff lawyers have always retained is their intensity of interest in tort reform, which has allowed them to compete politically with much more numerous and well-funded business and professional interests for whom tort is just one of many issues. Plaintiff lawyers enthusiastically defend their work. They see themselves as "equalizers" who roam through American society looking for injustice, taking the side of victimized individuals against large, uncaring institutions and in the process making a lot of money. Plaintiff lawyers are mavericks who, as one of them put it, "personify the American Dream." Unlike other attorneys, plaintiff lawyers make money only if they win their cases for clients, but the rewards of success can be high: the standard contingency fee is one-third of the damages awarded. Though many plaintiff lawyers struggle to survive in the profession, the most successful among them—who have reaped the rewards of class action lawsuits against the makers of asbestos, cigarettes, and other products—take in millions of dollars each year and so are highly motivated to defend their way of life. One oft noted example is William Lerach, a specialist in shareholder torts, whose firm in 1995 had about 250 pending lawsuits alleging more than $10 billion in damages. Lerach has contributed heavily to ATLA and other groups that oppose tort reform, hosted fund-raisers for Democrats including President Clinton and Vice President Gore, and given hundreds of thousands of dollars to legislators both in Congress and in the state of California, at one point running afoul of federal limits on campaign contributions. (Nonetheless, a law aimed squarely at Lerach's business, shareholder lawsuits against companies, was enacted during the Clinton administration, albeit over Clinton's veto.)
ATLA's insider strategy meant that for years it channeled resources toward campaign contributions and high-priced lobbyists, spending comparatively little for research or advertising. ATLA funded a few studies of tort law through the Roscoe Pound Foundation, which also conducts seminars and conferences, some of them on antilitigation issues. A Pound-funded seminar series, for example, brought state supreme court and appellate judges together for a forum on state constitutional rights. ATLA also made contributions to the Brookings Institution and the Rand Institute for Civil Justice. Overall, though, ATLA's research funding amounted to only a fraction of that provided by the tort reform movement. Nor did ATLA create advertising campaigns to counter those of Aetna and the other tort reform proponents. While Ralph Nader and several consumer groups took on the tort reformers in the media, ATLA preferred to work quietly through congressional leaders.
ATLA's strategy was undeniably successful in blocking federal tort reform legislation. Until the fall of 1994 the association could credibly claim that it had never been beaten in Congress. Reader's Digest hyperbolically acclaimed ATLA as "America's Most Powerful Lobby." Even today there are only minor blemishes on ATLA's record in Congress. The downside of ATLA's strategy, however, was that the lawyers seemed to be losing the battle of public opinion, and with it the hearts and minds of juries and judges. Detractors argued that in the long run the association would also lose with legislators. ATLA's strategy was controversial with its closest allies in the tort reform debate, public interest and consumer groups. Nader urged ATLA to become more of a grassroots, public organization—in other words, to become more like the public interest groups he had founded.
In 1994 ATLA moved modestly in this direction as Linda Lipsen, former lead lobbyist for Consumers Union, replaced Alan Parker, one of the architects of the ATLA strategy, as public affairs director. Under Lipsen the association has on occasion adopted a more public stance, with television and newspaper ads to counteract those of the tort reform groups. ATLA helped organize a coalition of opponents of tort reform called Citizens Allied for Safety and Accountability, which included unions and feminist groups. State-level plaintiff lawyer organizations have even renamed themselves to reflect a closer alliance with consumer groups: the California Trial Lawyers Association is now the Consumer Attorneys of California. Further, ATLA has moved beyond its long-standing strategy of playing "defense" and has gone on the attack, lobbying heavily for a new litigious policy, the patients' bill of rights. Nonetheless, ATLA has not become the forceful public advocate for the tort system that Nader and other consumer activists had hoped would emerge. The organization still emphasizes the "inside" game over the "outside" game.
This characterization is underscored by the plaintiff lawyers' latest and perhaps most effective tactic in the tort reform battle: in a series of cases, plaintiff lawyer organizations have argued before state courts that tort reforms violate state constitutions. These lawsuits, employing a variety of legal theories, have brought major victories in Ohio, Illinois, Indiana, Florida, and Oregon, where state courts have overturned important tort laws on state constitutional grounds. Altogether, from 1990 to 2000 there were at least forty-eight state court decisions holding tort reform laws unconstitutional. The genius behind the plaintiff lawyers' move to state courts is that, because state supreme courts are final in matters of state law, their decisions are immune from review by (more conservative) judges in the federal judiciary.
In fact, the only way tort reformers can overcome unfavorable state judicial rulings is by replacing the judges, a possibility that has made judicial elections—a surprisingly common mechanism for picking supreme court judges—the new battleground in the tort war. From 1994 to 2000 the amount of money contributed to state supreme court candidates more than doubled, from about $21 million to over $45 million. State supreme court candidates who raised money in 2000 averaged $430,000 in contributions, at least half of which has been identified as coming from business and legal interests. These numbers, though, hide an important fact: almost all of the contributions were concentrated in just a few states—Alabama, Illinois, Michigan, Mississippi, Nevada, Ohio, Texas, and West Virginia—that feature high-profile judicial struggles over the tort system. Indeed, Alabama alone recorded more than $13 million in contributions in 2000. Beyond their contributions to candidates, business and plaintiff-lawyer groups in four tort battleground states—Ohio, Alabama, Michigan, and Mississippi—also bought their own television ads to participate directly in the election. In Ohio, where the supreme court had recently struck down a comprehensive tort reform law, business interests—in particular, the U.S. Chamber of Commerce and Citizens for a Sound Economy—dominated the ad war, spending nearly $2 million in direct advertising against $1 million spent by plaintiff lawyers and their labor union allies. Ohio viewers saw a total of more than twelve thousand television ads costing more than $5 million; many of the ads were devoted to criticizing or defending the judges' votes on civil liability issues. Thus ATLA's move to state courts has transferred much of the energy in the litigation debate-and loads of money—from legislative and ballot struggles to judicial campaigns, in the process transforming the politics of state supreme courts.
ATLA is the giant among plaintiff lawyer groups, but there are plenty of more specialized associations that from time to time become active in antilitigation issues. State-level workers' compensation plaintiff lawyer groups focus on workers' comp reform bills but often work closely with the trial lawyer organizations. The Academy of Rail Labor Attorneys guards against changes in the railroad employee tort system, while the National Employment Law Association fights for the rights of employees in lawsuits over discrimination, wrongful termination, and benefits.
The voice of the civil defense bar in antilitigation politics is, in contrast to the plaintiff side, muted. There are many civil defense groups that lobby at the state level, but the only civil defense interest group with a Washington office is Lawyers for Civil Justice. LCJ, which generally takes antilitigation positions, has neither the political action committee nor the big lobbying budget of ATLA. In recent years it has concentrated much of its money on class action reform and conflicts over civil procedure, though it participates in the full range of tort reform issues. Either because they lack the large incentives of the plaintiff lawyers or because they have ambivalent attitudes toward antilitigation efforts, defense lawyers are far less mobilized than their courtroom adversaries.
Aside from tort, lawyer groups seem to have the most influence in the more technical antilitigation struggles, for instance, those over civil procedure, which fail to attract many nonlegal interest groups. Where many interests get involved, as in the battle over the Patients' Bill of Rights, even the ABA is just one among many groups, with no special claim to influence. Still it is rare to find an antilitigation battle in which lawyer groups do not participate in some way.
Ralph Nader and Public Interest Liberalism Aside from lawyers, the chief defenders of litigation are representatives of public interest liberalism. As Michael McCann has argued, litigation is a primary strategy of the public interest movement, the assortment of environmental, consumer, and citizen action reform groups that grew up in the 1960s and 1970s. Reversing the view of their ancestors, the New Deal liberals, for whom courts were bastions of reactionary conservatism, public interest reformers argued that courts were needed to check the abuses of both government and corporate bureaucracies. The public interest reformers used the federal courts to gain access to political power, invigorating judicial review of administrative agencies and exercising rights of citizen enforcement of environmental laws. Thus the public interest movement was behind many of the litigious policies adopted in the 1970s.
Ralph Nader, the most influential leader of the movement, exemplifies its prolitigation aspects. Though he is most widely known today for his role in the 2000 presidential election, in the comparatively obscure world of litigation politics he is a giant. Nader has long been the most outspoken defender of litigation in America, regularly flagellating the tort reform movement in the media and providing a one-man cheering squad for tort law, the jury system, and plaintiff lawyers. Nader disparages all the major antilitigation proposals, from no-fault to ADR to tort reform. He sees these efforts as part of an attempt by corporate interests to subdue courts, the one institution in American government that he believes business does not yet fully control. Traveling from state to state, Nader has for years campaigned against antilitigation proposals with florid rhetoric and a stream of statistics. He has criticized law professors who have turned against the tort system, calling them "empirically starved" and attributing their turnaround to an interest in consulting for "perpetrators." He has spoken at conventions of plaintiff lawyers, chastising them for their willingness to "cut a deal with the likes of Aetna" on tort legislation and exhorting them to "fight the good fight" against tort reform.
For years critics charged that Nader's unequivocal prolitigation stance reflected the funding he received from plaintiff lawyers. The criticism began in the mid-seventies, when Nader appeared to waffle on the issue of no-fault auto insurance just as one of his organizations received a check from ATLA. (The check was never cashed.) In fact, Nader and the consumer groups he established were generously supported by plaintiff lawyers for many years—until the election of 2000, when Nader's candidacy for president enraged ATLA's leadership. ATLA had strongly supported Al Gore, fearing the election of George W. Bush, a proud tort reformer. Plaintiff lawyers blamed Nader for helping to tip the election in favor of Bush and excoriated him as, in the words of one, "a victim of his own ego." They pulled funding from Nader-associated consumer groups such as Public Citizen, the Aviation Consumer Action Project, and the Center for the Study of Responsive Law. Nader had once been acclaimed at ATLA conventions as a hero; now he "might need some protection" were he foolish enough to show up, according to Fred Baron, ATLA's president in 2001. For his part, Nader argued that Gore was hardly a great friend of tort law, having surrounded himself with tort "deformers," including Gore's running mate, Joe Lieberman, who had often crossed party lines in the Senate to vote for liability reform laws. Nader criticized the plaintiff lawyers for timorously clinging to the Democratic party, which he charged had failed to stand up in defense of tort law and had often betrayed plaintiff lawyers. Further, Nader insisted that the funding pullback was no great loss for him or consumer organizations.
The long-term consequences of the rupture between Nader and the plaintiff lawyers for the litigation debate are, at this point, hard to assess. There is, however, no chance that Nader will change his tune about the virtues of tort law or about litigation more broadly, for these themes go to the heart of his political philosophy. The hallmark of that philosophy is a deep distrust of both corporate and government bureaucracies. Indeed, though he does not use this language, Nader has developed a strong defense of the adversarial legal model of decision making as against the bureaucratic model. In the adversarial legal model, remember, social issues are organized as disputes between parties, and the decision makers (judges and juries in the American system) are not tightly bound to a centralized higher authority; the rules the decision makers use are themselves constantly in dispute and evolving. This contrasts with the bureaucratic model, in which low-level workers in a hierarchical system apply fixed rules laid down by their superiors. Throughout his career, Nader has demonstrated a pervasive skepticism of the bureaucratic model as embodied in both government and corporate organizations, and a corresponding love for the fluidity and unpredictability of adversarial legalism as embodied in the American legal system. Nader's first crusade, to improve the safety of American automobiles, resulted in an array of new regulations governing automakers to be administered by the National Highway Traffic Safety Administration (NHTSA). But almost from the moment NHTSA began dealing with the new regulations, Nader soured on the agency. It is a pattern he has repeated throughout his career; Nader vilifies even those federal agencies his movement helped to create. Indeed Nader's antipathy toward bureaucracies can be seen in the unstructured way he manages his own organizations. One of his chief goals is to make sure that "the evils of bureaucracy do not afflict us."
Nader indicts bureaucracies on several counts. First, government bureaucracies are always vulnerable to capture by corporate interests, a phenomenon that Nader says he first witnessed with NHTSA. Second, bureaucracies corrode the moral sensibilities of those who work within them, because bureaucrats can always blame the organization or its rules for their conduct. This makes it hard to hold bureaucrats accountable for what they have done. Third, bureaucrats become distracted from their mission and worry more about their own security and comfort than doing their job well. "The greatest prejudice of a bureaucrat," Nader says, "is a vested interest in the job." For Nader, organizations are always perilous to the human spirit, always tending toward rigidity and decay, a view that makes social change through bureaucratic regulation profoundly problematic. But for everything wrong with bureaucracies, Nader sees something right with courts—and adversarial legalism.
Bureaucracies are staffed by bureaucrats, with all their vested interests; courts are staffed by juries, ordinary citizens whose connection to the organization ends when they finish their deliberations. Bureaucracies are slow to consider new issues, Nader argues, but the common law is constantly in a state of adjustment. Nader sees the "grandeur of the civil justice system" in "its incredible adaptability," which puts it at "the cutting edge of social and technical change." Bureaucracies quickly fall under the sway of powerful interests; courts give the individual a chance to take them on. "Where else," Nader asks, "can a person without any money take on General Motors?" Finally, bureaucracies reward plodding bureaucrats, while courts reward plaintiff lawyers, who heroically risk everything to confront corporate evil. "It's amazing that lawyers who labor for the victims and only get paid when they win and not when they lose, are always on the defensive," he says.
Nader believes that corporations fight so ferociously against litigation precisely because it disrupts their bureaucratic routines. Corporations, he claims, can easily adjust to the relatively small flow of money they pay out in tort lawsuits. What bothers them, Nader argues, is the unpredictability of the legal system, its threat to dig deep into their decision-making processes and expose their wrongdoing. Corporations crave predictability because it gives them control. "They want to know exactly what their exposure is, what their risk is," Nader says, "so they can translate it into the cost of doing business and reduce forever any kind of deterrent, any kind of unpredictable sting in their pocketbooks."
Given this analysis, it is not surprising that Nader disapproves even of antilitigation reforms favored by some liberals, for example, no-fault systems. No-fault, Nader argues, bureaucratizes the tort system. The dangers of no-fault, Nader claims, are illustrated by the workers' compensation system, which is staffed by risk-averse lawyers and so stands still, taking many years to recognize new and important dangers such as workplace chemical exposure. The common law, Nader claims, will always move much more quickly than a bureaucratized system.
Nader's antibureaucratic impulses are, of course, in line with the deepest traditions of American political thought. Indeed Nader's view of government bureaucracies is largely shared by his conservative critics. Nader's turn to the courts, like that of many liberal activists, is rooted in the combination of an intense desire to change society and a particularly American distrust of government. Litigation seems to offer a way out of this dilemma. Thus for Nader, as for the public interest movement generally, antilitigation proposals are anathema.
Consumer Groups Besides ATLA and Nader, the chief lobbyists against federal tort reform have been consumer groups, particularly Public Citizen, Consumers Union, the Consumer Federation of America, the National Insurance Consumer Organization, Citizen Action, and the U.S. Public Interest Research Group. Consumer groups are also active in state-level tort reform battles. Vastly outfinanced by their business opponents, they nonetheless can be found wherever civil liability is an issue.
Although plaintiff lawyers and consumer groups are for the most part united on antilitigation issues, there were divisions even before Nader's recent fall form plaintiff lawyer grace. Nader and Public Citizen have attacked bans on lawyer advertising and laws barring nonlawyers from performing routine legal tasks. Consumer groups, along with Nader, have criticized the trial lawyer associations for occasionally compromising on state-level tort reforms. The California "Napkin Deal," in which trial lawyers conceded several reforms, was a particularly galling example. In addition, some consumer groups have supported no-fault auto insurance, while those in the Naderite wing of the consumer movement opposed it. (Chapter 3 tells the story of the Napkin Deal and the no-fault struggle that followed it.) There is also a consumer group organized specifically to protest the high costs of legal services—HALT, an acronym for Help Abolish Legal Tyranny. The activities of HALT, however, are an exception to what has been a generally warm relationship between consumer and plaintiff lawyer groups.
Other Liberal Groups ATLA and the consumer organizations occupy the front lines in the tort battle, but other liberal groups are also involved from time to time in antilitigation struggles. Environmental public interest groups defend citizen suit provisions. Civil rights groups defend antidiscrimination laws and sometimes speak up in debates over civil procedure. Public interest groups generally oppose attempts to eliminate attorney fee provisions.
There has been less participation—and sometimes even opposition—from other members of the liberal coalition. Unions, for example, have been relatively uninvolved in tort battles in Congress. Opponents of tort reform have attempted to bring previously uninvolved groups, particularly unions and feminist organizations, into the debate. Nonetheless, the defense of tort litigation has remained a task performed almost solely by consumer and lawyer groups.
The Democratic Party The groups that defend litigation from attack are mainly aligned with the Democratic party. Thus it is not surprising that when antilitigation legislation is opposed, the opposition usually comes from Democratic legislators. In Congress and in state legislatures, battles over tort reform, civil rights, and criminal procedure occur generally along party lines, with some defection on both sides.
The final chapter of this book includes a study of congressional votes on litigious policies during the 104th Congress (1995-96), the first House controlled by Republicans in forty years. This session featured debate over a broad range of antilitigation and prolitigation measures, including bills to limit criminal appeals, attorney's fees, Clean Water Act and racial discrimination lawsuits, and tort litigation involving faulty products, stock market fraud, and medical malpractice. Each vote was largely along party lines, and on all but two of the votes—involving Republican proposals to create new rights to sue over environmental regulations—the Democrats took the prolitigation side. This pattern recurs throughout the litigation debate: where litigious policies are defended in politics, it is usually Democrats who are doing the defending.
Judges Prolitigationists sometimes find support among judges, particularly at the state level. Although many judges have embraced aspects of the antilitigation message and have become involved in ADR and other management reforms, others resist these measures, particularly those that encroach on the independence of the judiciary. Further, whereas some judges have cut back on tort doctrines, giving defendants more chance to prevail, many others have struck down legislative tort reform as unconstitutional. Indeed, as noted above, state judicial decisions have become a primary weapon of plaintiff lawyer groups in their struggle against tort reform. Thus state courts have become key allies for those favoring litigious policies.
The U.S. Supreme Court, in contrast, has repeatedly sided with antilitigation forces during William Rehnquist's tenure as chief justice. In rulings on standing, judicial review of administrative agencies, class actions, expert testimony, limitations on habeas corpus, and the constitutionality of citizen lawsuits against states, the Rehnquist Court has upheld laws or promulgated decisions that discourage litigation. The Court has struck down lawsuits under the Violence against Women Act and has restricted the range of lawsuits under a series of civil rights laws including the Age Discrimination in Employment Act and the Americans with Disabilities Act. In tort the Court in BMW v. Gore for the first time struck down a personal injury liability verdict as unconstitutionally excessive. In another case, Honda v. Oberg, the Court overturned an Oregon law limiting the ability of judges to review jury awards of punitive damages. These decisions, according to former solicitor general Walter E. Dellinger, reflect "the Court's strong distrust of the private litigation process." As Lori Johnson has argued, one subset of these antilitigation decisions—the rulings on federalism—may also reflect some justices' concerns about protecting the federal judiciary from overload. The justices have voiced these concerns in testimony before Congress, in public speeches, and within the federal judiciary's own policy-making body, the Judicial Conference. In any case, the Court has emerged as a major source of support for antilitigation forces.
The Focus of This Study As this review indicates, a formidable array of interest groups, scholars, and public officials are fighting over lawsuits and litigiousness across many policy realms. The balance of this book, however, focuses on just three cases drawn from the panoply of antilitigation efforts I have described.
How can three cases represent such a diverse assortment of struggles? The answer is obvious: they can't. Representation, however, is not the purpose of what social scientists sometimes call the "small-n case study method." Instead, small-n analysis (in this study n = 3) allows the researcher and reader to evaluate theories by probing a few carefully selected cases in great depth. The small-n method is particularly appropriate when, as in this study, the central issues have not been studied before. In such a situation, lacking a base of well-developed theory and empirical research, it makes little sense to proceed to large-n statistical tests of data abstracted from the cases. With in-depth case studies, both researcher and reader can investigate more fully the events, beliefs, and institutions that shape outcomes and through this process carefully develop theories to explain these outcomes.
Successful small-n research requires careful selection of cases. My case selection is guided by several criteria. First, this study is confined to cases of serious legislative antilitigation efforts. A book that attempted to cover all judicial or contractual efforts to limit litigation would be endless. After all, many (maybe even most) lawsuits ask for an interpretation of a rule that creates new opportunities for litigation or ends old ones. The universe of judicial struggles over litigation is therefore astronomical. Similarly, private sector initiatives to limit litigation—for instance, through mandatory arbitration contracts—are ubiquitous. But beyond the need to pick from a limited universe of cases, my focus on legislative cases rests on their theoretical value. Legislative cases particularly reveal the institutional, cultural, and political sources of support and opposition to litigation in the United States. This is because legislative politics involves (1) broad participation of interest groups at varying levels of mobilization, (2) publicly available records of deliberation, and (3) extended articulation and debate about public values. Exploring the roots of the distinctively American preference for litigation demands an examination of both the ideas and the interests that support or oppose litigious policies, and legislative struggles are far more helpful in this regard than court decisions or contractual agreements.
Second, the cases are drawn from the replacement and resistance categories of antilitigation efforts. As I've suggested, these categories offer the most theoretically interesting of all antilitigation struggles because they pose the starkest choice between litigation and other modes of problem resolution. Only resistance and replacement efforts attack the core attributes of the adversarial legal model, its bilateralism, privatism, decentralization, and fluidity. Thus only by studying resistance and replacement efforts are we likely to answer most directly the question of why American policy makers choose—or choose to limit—litigious policies.
Third, in each case the policy outcomes are compared to those in other economically advanced nations. My primary explanation for the prominence of litigious policies in the United States rests on aspects of American political culture and governmental structure that distinguish it from many other nations. Cross-national comparisons help us think through this explanation. Although this study does not provide detailed comparisons, it does suggest general patterns and in so doing gives a sense of the range of policy approaches among advanced economies.
Finally, the cases vary in outcome. In a small-n study it is particularly important to study cases in which the outcomes differ in order to gain insight as to what exactly is causing what. The three cases include (1) an unsuccessful attempt to stop a new form of litigation, the Americans with Disabilities Act; (2) an unsuccessful attempt to reform an old source of litigation, auto accident personal injury law; and (3) a successful attempt to reform litigation over vaccine injuries, the Vaccine Injury Compensation Act. The case studies begin with the birth of a litigious policy, the Americans with Disabilities Act.