Research Handbook on the Economics of Torts
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Research Handbook on the Economics of Torts

Edited by Jennifer H. Arlen

This pioneering Handbook contains specially-commissioned chapters on tort law from leading experts in the field. This volume evaluates issues of vital importance to those seeking to understand and reform the tort law and the litigation process, taking a multi-disciplinary approach, including theoretical economic analysis, empirical analysis, socio-economic analysis, and behavioral analysis. Topics discussed include products liability, medical malpractice, causation, proximate cause, joint and several liability, class actions, mass torts, vicarious liability, settlement, damage rules, juries, tort reform, and potential alternatives to the tort system. Scholars, students, legal practitioners, regulators, and judges with an interest in tort law, litigation, damages, and reform will find this seminal Handbook an invaluable addition to their libraries.
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Chapter 20: The empirical effects of tort reform

Theodore Eisenberg


Tort reforms enacted in response to asserted crises date back to the 1970s, yet several factors have complicated assessing their effects. Possible effects should initially be separated into two components: (1) observable effects within the legal system, such as lawsuit filings, case outcomes, and punitive damages patterns; and (2) observable effects on primary behavior, such as whether obstetricians changed their practices in response to tort law changes. These effects require separate data and analysis. With respect to effects within the legal system, no systematic database exists that allows reliable estimates of the effect of tort reform. A fundamental problem is that fully assessing the effects requires accounting for settlement, the modal outcome of tort litigation. Yet systematic data on settlements do not exist. Beyond this, the available data on trial outcomes also is limited. It is often incomplete or filtered through biased sources, and rarely includes data on post-trial settlements or appeals. So comparing the legal system before and after reform enactments depends on ad hoc studies and cannot be done by monitoring existing data sets.

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