Research Handbooks in Law and Economics series
Edited by Jennifer H. Arlen
Chapter 1: Empirical Analysis of Civil Litigation: Torts Trials in State Courts
Competing perceptions of civil litigation in the United States abound. These perceptions vary, often substantially. Critics of the American civil litigation system typically focus on the tort system, emphasizing excessive litigation volume, inefficiencies, unpredictability, as well as the related, mounting individual and collective social and economic costs (e.g., Huber 1988; Olsen 1991). During the 1990s, one prominent critic—former U.S. Vice President Dan Quayle—highlighted civil litigation’s cost to the economy and moved civil litigation reform to the center of his legislative agenda. A few years later, the Republican’s Contract With America policy initiatives sought tort reform that addressed a court system burdened with frivolous lawsuits (e.g., Thompson 2009). The decibel levels of many outcries over the last decade over perceptions of a litigation “explosion” or “liability crisis” continue to reach new heights and cut across traditional coalitions and ideologies (Miller 2003). The now-legendary (and often misunderstood) “McDonald’s coffee case” persists as a symbol to many of a tort system unhinged (e.g., Cain 2007). Not everyone, however, accepts the litigation “explosion” or “crisis” narratives. Indeed, for other critics problems with the American tort system flow from too few successful tort actions (e.g., Arlen and MacLeod 2003; Arlen 2010; Mello et al. 2006) and, where liability exists, insufficient damages (e.g., Arlen 1999).
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