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 I 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, AI; Edward Felsenthal, "Avogadro's Number, You Say, Professor? I Don't Think So," The Wall Street Journal, May 9,1995, AI; 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, AI; Richard B. Schmitt, "Uncharitable Acts: If Donors Fail to Give, More Nonprofit Groups Take Them to Court," Wall Street Journal, July 27,1995, AI; "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, AI2; Di Mari Ricker, "Who Wants to Sue a

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 [1991]: 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 [1989]: 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) 222–243; Fine, "Cokelore and Coke Law: Urban Belief Tales and the Problem of Multiple Origins," Journal of American Folklore 92 [1979]: 477–482; 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): 537–565.

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 [1995]: 413–435).

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], 191–192). 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, 1633–1639," Virginia Magazine of History and Biography 85 [1977]: 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 [1988]: 681; and Jeffrey M. FitzGerald, "Grievances, Disputes and Outcomes: A Comparison of Australia and the United States," Law in Context 1 [1983]: 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 [1991]: 499–544). Another study found the English less likely than Americans to blame someone else for an accident or claim

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): 1002–1044.

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): 263–290.

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,

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

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 [1994]: 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), 1291–1295. 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); Olson, The Excuse Factory: How Employment Law Is Paralyzing the American Workplace(New York: Free Press, 1997); Philip K. Howard, Death of Common Sense; Howard, The Lost Art of Drawing the Line: How Fairness Went Too Far(New York: Random House, 2001); and Max Boot, Out of Order: Arrogance, Corruption and Incompetence on the Bench(New York: Basic Books, 1998).

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): 129–155; 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

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 [1938]). 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): 238–249.

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), 181–182.

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., 253–257.

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): 343–379; 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 Court of Federal Claims, 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).

1. For a history of attempts to keep disputes out of court in the United States, see Jerold Auerbach, Justice without Law?(New York: Oxford University Press, 1983). Auerbach demonstrates that conflicts over litigiousness are hardly unique to late-twentieth and early-twenty-first-century America.

2. Marc Galanter notes that Chief Justice Warren Burger, who would later become a leading spokesman for antilitigation efforts, omitted any mention of excessive litigiousness in his first "State of the Judiciary" address in 1970. Galanter, "Reading the Landscape of Disputes," 9.

3. Simon Rifkind, "Are We Asking Too Much of Our Courts?" in The Pound Conference: Perspectives on Justice in the Future, ed. A. Leo Levin and Russell R. Wheeler (St. Paul, Minn.: West, 1979), 51.

4. Walter V. Schaefer, "Is the Adversary System Working in Optimal Fashion?" in Pound Conference, 181.

5. Francis Kirkham, "Complex Civil Litigation—Have Good Intentions Gone Awry?" in Pound Conference, 212, 214.

6. Edward Levi, "The Business of Courts: A Summary and Sense of Perspective," in Pound Conference, 278.

7. Robert Bork, "Dealing with the Overload in Article III Courts," in Pound Conference, 151.

8. Kirkham, "Complex Civil Litigation," 213.

9. Geoffrey C. Hazard, "Social Justice through Civil Justice," University of Chicago Law Review 36 (1969): 699–712; Donald Horowitz, The Courts and Social Policy(Washington, D.C.: The Brookings Institution, 1977); Nathan Glazer, "Towards an Imperial Judiciary," The Public Interest 41:3 (1975) 104–23; Derek C. Bok, "A Flawed System," Harvard Magazine, May–June 1983, 38–45, 70; and Kristin Bumiller, The Civil Rights Society: The Social Construction of Victims(Baltimore: Johns Hopkins University Press, 1988). For criticism of the expansion of judicial review of administrative agencies, see Melnick, Regulation and the Courts; Shapiro, Who Guards the Guardians; and Rabkin, Judicial Compulsions.

10. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change?

11. On the critical legal studies side see, for example, Peter Gabel and Duncan Kennedy, "Roll Over Beethoven," Stanford Law Review 36 (1984): 1; Mark Tushnet, "An Essay on Rights," Texas Law Review 62 (1984): 1363; and Alan D. Freeman, "Legitimizing Racial Discrimination through Anti-Discrimination Law: A Critical Review of Supreme Court Doctrine," Minnesota Law Review 62 (1978): 1049. The "father" of critical race theory is Derrick Bell; see his classic article "Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation," Yale Law Journal 85 (1976): 470; or his two bestknown books, Faces at the Bottom of the Well(New York: Basic Books, 1992) and And We Are Not Saved(New York: Basic Books, 1987). For a defense of rights from a leading critical race theorist see Patricia Williams, "Alchemical Notes: Reconstructing Ideals from Deconstructed Rights," in Harvard Civil Rights–Civil Liberties Review 22 (1987): 401. Finally, for an overview of critical race theory there are two compendiums from which to choose: Kimberle Crenshaw, ed., Critical Race Theory: The Key Writings That Formed the Movement(New York: The New Press, 1995); and Richard Delgado, ed., Critical Race Theory: The Cutting Edge(Philadelphia: Temple University Press, 1995).

12. Glendon, Abortion and Divorce in Western Law: American Failures, European Challenges(Cambridge, Mass.: Harvard University Press, 1987), and Rights Talk: The Impoverishment of Political Discourse. Robert Bellah, another prominent academic associated with the communitarian movement, cites "the explosion of civil litigation" as evidence of a surfeit of blame and a deficit of responsibility in American society (Robert Bellah and Chris Adams, "Pessimism and Fantasy Reign in Presidential Race," San Francisco Chronicle, September 18, 1992).

13. Three studies, for example, argued that the American economy was suffering because of a surplus of lawyers: Stephen P. Magee, William A. Brock, and Leslie Young, Black Hole Tariffs and Endogenous Policy Theory: Political Economy in General Equilibrium(New York: Cambridge University Press, 1989); David N. Laband and John P. Sophocleus, "The Social Cost of Rent-Seeking: First Estimates," Public Choice 58 (1988): 269; and Kevin M. Murphy et al., The Allocation of Talent: Implications for Growth(National Bureau of Economic Research working paper, 1990).

14. See, for example, Craig Bradley, The Failure of the Criminal Procedure Revolution(Philadelphia: University of Pennsylvania Press, 1993); R. H. Helmholz et al., The Privilege against Self-Incrimination: Its Origins and Development(Chicago: University of Chicago Press, 1997); and Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles(New Haven, Conn.: Yale University Press, 1997). Amar advocates eliminating the exclusionary rule and relying more on tort remedies to deter wrongful searches and seizures by police, so he is not exactly an antilitigationist. Amar does, however, mention the possibility of using an administrative process to determine damages rather than the traditional judicial process (see Amar, 159).

15. Gary Schwartz, writing in 1992, claimed that among tort scholars at the top twenty law schools in the nation, only one, Marshall Shapo at Northwestern, could be regarded as supportive of the existing state of tort law (Schwartz, "The

The American Law Institute, responsible for drafting the liberalizing Second Restatement of Torts, published a highly critical report on the tort system, Enterprise Responsibility for Personal Injury(Philadelphia: American Law Institute, 1991). A team of researchers from Harvard, including legal scholars, found medical malpractice litigation inadequate both for deterrence and compensation (Weiler et al., A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation).

In many respects these scholars are following in the footsteps of Jeffrey O'Connell, a tort professor who since the mid-1960s has produced a relentless stream of articles and books criticizing tort law and suggesting alternatives, particularly no-fault systems. See, for example, O'Connell and Robert E. Keeton, Basic Protection for the Traffic Victim: A Blueprint for Reforming Automobile Insurance(Boston: Little, Brown, 1965); O'Connell, The Lawsuit Lottery: Only the Lawyers Win(New York: Free Press, 1979); O'Connell and C. Brian Kelly, The Blame Game: Injuries, Insurance and Injustice(Lexington, Mass.: Lexington Books, 1987); O'Connell, "A Draft Bill to Allow Choice between No-Fault and Fault-Based Auto Insurance," Harvard Journal on Legislation 27:1 (1990): 143–171; and O'Connell, Lester Brickman, and Michael Horowitz, Rethinking Contingency Fees(Washington, D.C.: Manhattan Institute, 1994).

16. The leading research organization on civil justice issues, the Rand Institute for Civil Justice (ICJ), was created in 1979, after an insurance executive, inspired by the Pound Conference, suggested to colleagues that more systematic research on the civil justice system was needed (Rand Institute for Civil Justice, "How the ICJ Was Born," 1994–5 Annual Report[Santa Monica, Calif.], 14–15). ICJ's research has, however, often disappointed ardent antilitigationists. It contributed to debunking the myth of the litigation explosion, gave only mixed reviews to alternative dispute resolution programs, and proved that accident victims are typically undercompensated yet rarely sue (Deborah Hensler, Court-Ordered Arbitration: An Alternative View[Santa Monica, Calif.: Rand Institute for Civil Justice, 1990]; Robert J. MacCoun, Unintended Consequences of Court Arbitration: A Cautionary Tale from New Jersey[Santa Monica, Calif.: Rand Institute for Civil Justice, 1992]; E. Allen Lind et al., The Perception of Justice: Tort Litigants’ Views of Trial, Court-Annexed Arbitration and Judicial Settlement Conferences[Santa Monica, Calif.: Rand Institute for Civil Justice, 1989];

The American Bar Foundation, the National Center for State Courts, and the Brookings Institution have also been active in the litigation debate. Some of the ABF studies are Stephen Daniels and Joanne Martin, "Empirical Patterns in Punitive Damage Cases," (Chicago: American Bar Foundation, 1987); "Jury Verdicts and the ‘Crisis’ in Civil Justice" (Chicago: American Bar Foundation, 1987); "The Man Who Mistook His Lawnmower for a Hedge Trimmer (and Collected $500,000): Examining Products Liability Verdicts," (Chicago: American Bar Foundation, 1992); and Daniels and Martin, Civil Juries and the Politics of Reform. Besides its own research, the National Center for State Courts regularly publishes Examining the Work of State Courts, which provides much of the raw data for the liability debate. Brookings has published four books on the litigation debate: Robert Litan and Clifford Winston, Liability: Perspectives and Policy(Washington, D.C.: The Brookings Institution, 1988); The Brookings Institution Task Force, Justice for All: Reducing Costs and Delays in Civil Litigation(Washington, D.C.: The Brookings Institution, 1989); Huber and Litan, eds., The Liability Maze; and Robert E. Litan, Verdict: Assessing the Civil Jury System(Washington, D.C.: Brookings Institution, 1993).

The most avowedly antilitigation research organization is the Center for Legal Policy at the Manhattan Institute Center for Policy Research. The institute is the home of the two most prominent antilitigation writers, Walter Olson and Peter Huber, whose books have fueled the tort reform movement and inspired antilitigation politicians, most famously Dan Quayle. Olson and Huber were dubbed "the intellectual gurus of the tort reform movement" by the Washington Post("Walter Cronkite Video Helps Stir Debate over Tort Reform," Washington Post, September 14, 1992, C5). Olson's books are The Litigation Explosion and The Excuse Factory; Huber has written Liability: The Legal Revolution and Its Causes(New York: Basic Books, 1988) and Galileo's Revenge: Junk Science in the Courtroom(New York: Basic Books, 1991). Recent Manhattan Institute publications include Regulation through Litigation: Assessing the Role of Bounty

17. Dan Quayle, address to the annual meeting of the American Bar Association, Atlanta, Ga., August 13, 1991.

18. President's Council on Competitiveness, Agenda for Civil Justice Reform in America(Washington, D.C., August 1991).

19. John J. Curtin (president, American Bar Association), remarks in response to Vice President Dan Quayle's address (American Bar Association annual meeting, Atlanta, Ga., August 13, 1991).

20. Julie Johnson and Ratu Kamlani, "Do We Have Too Many Lawyers?" Time Magazine, August 26, 1991, 54; "Justice at What Price?" Seattle Times, August 14, 1991, A3; Michael Kinsley, "Quayle's Case," New Republic, September 9, 1991, 4; and Douglas Jehl, "Administration Calls for Wide Legal Reforms," Los Angeles Times, August 14, 1991, A1.

21. As Marc Galanter has demonstrated, Quayle's estimates of the proportion of lawyers practicing in the United States (70 percent) and the cost of tort litigation ($300 billion) were essentially made up and greatly exaggerate the true figures. See n. 92 (p. 225). The figure for the amount of civil cases filed—eighteen million—was correct but somewhat misleading since millions of them were routine uncontested probate, divorce, and debt collection matters and only a small percentage were tort claims, the type Quayle dwelt on in his speech. See Galanter, "News from Nowhere," 77–113.

22. Geoffrey C. Hazard, Jr., "Bush Report Not All That Controversial," National Law Journal(December 16, 1991), 13; Deborah Hensler, "Taking Aim at the American Legal System: The Council on Competitiveness's Agenda for Legal Reform," Judicature 75:5 (1992): 244–250.

23. For example, Quayle's proposed "loser pays" rule seemed on its face to be a revolutionary measure but actually amounted to much less. As its name suggests, the loser-pays rule requires the loser of a lawsuit to pay the legal costs incurred by the other side. This is the normal rule in most nations, but under the "American rule," losing parties are typically not required to pay the legal costs of their opponents. A move to make loser pays the normal rule in American civil law would have been a radical proposition. Quayle's initiative, however, was limited to diversity cases, those in which plaintiffs can choose either federal or state court, a limitation that would have greatly restricted the impact of the reform since plaintiffs could dodge it by lodging their cases in state courts.

24. Executive Order 12778, "Civil Justice Reform," Public Papers of the Presidents 27 (October 23, 1991): 1485. Some elements of the recommendations for discovery reform did end up in procedural rules changes adopted by the Judicial Conference the following year.

25. Joe Queenan, "Birth of a Notion: How the Think Tank Industry Came Up with an Issue That Dan Quayle Could Call His Own," Washington Post, September 20, 1992, C1.

26. Dole made the story of his fall from a campaign stage part of his standard campaign speech. At an event in San Diego he used it to illustrate the need for tort reform:

Baseless litigation costs a lot of jobs and a lot of time and a lot of money. And obviously they enrich the trial lawyers. And I don't have any quarrel about people making money, but a lot of time these frivolous lawsuits put a lot of people out of business, take a lot of time, take a lot of your money. … I was out in Chico, California about five weeks ago. And to some of you who watch television, the railing wasn't very secure and I dove into the crowd. And on the way down, my cell phone rang. And this trial lawyer says, "Bob, I think we've got a case here." (laughter/applause)

(Campaign speech by Bob Dole, San Diego, California, Federal News Service, October 15, 1996)

27. George Lardner, Jr., "‘Tort Reform’: Mixed Verdict," A6.

28. In the 2000 presidential election debate in St. Louis, George W. Bush proposed a "Teacher Protection Act" limiting lawsuits against teachers (Transcript of the 2000 Presidential Election Debate, St. Louis, Missouri[Federal News Service, October 17, 2000]). David A. Price, "Can Dole Reign In Trial Lawyers?" Investor's Daily, September 12, 1996, A1; Robert Dole, Republican Platform Committee address, CNN Transcript #869–2, August 6, 1996; Harriet Chiang, "Presidential Campaign Puts Lawyers on Trial," San Francisco Chronicle, September 24, 1992, A1.

29. Author's e-mail conversation with staff of the Court Statistics Project, National Center for State Courts, Williamsburg, Va., April 2, 2002. Although the ratio of tort to contract cases varies greatly over time, since 1984 there have always been at least 14 percent more contract than tort cases in the National Center for State Court's sample. Moreover, tort and contract cases together amount to only a small part of the work of state courts, which handle more than 97 percent of all cases filed in the United States. The NCSC staff estimates that only 2.9 million of the 31.7 million cases filed in general-jurisdiction state courts in 2000 involved tort and contract disputes; overall state case filings (including minor matters such as traffic tickets) numbered 92 million.

30. Ross E. Cheit, "Corporate Ambulance Chasers: The Charmed Life of Business Litigation," Studies in Law, Politics and Society 11 (1991): 119–40.

31. David Engel, "The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community."

32. William Glaberson, "When the Verdict Is Just a Fantasy," New York Times, June 6, 1999, sec. 4, p. 1; Aks, Haltom, and McCann, "Symbolic Stella," 5–7.

33. Interview with Diane Swenson, executive vice president, ATRA, Washington, D.C., May 19, 1994; "Special Report: Tort Reform Interests and Agendas," Legal Times, April 17, 1995, S30; interview with Michael Hotra, director of public education, ATRA, Washington, D.C., November 15, 2000.

34. Interview with William Fay, executive director, Product Liability Coordinating Committee, Arlington, Va., July 22, 1994.

35. Karen Alexander, "GC Group Knocks Out Tort Reform," American Lawyer(September 1992), 59.

36. The Alliance for Justice, a prolitigation public interest group, discusses these activities in a report on funding of the civil justice reform effort. According to the report, between 1989 and 1991 Aetna gave a total of $1.5 million for "reform of the civil justice system," including $250,000 to the American Law Institute, $600,000 to Rand's Institute for Civil Justice, and $180,000 to the Manhattan Institute (Alliance for Justice, Justice for Sale: Shortchanging the Public Interest for Private Gain[Washington, D.C., 1993], 59).

37. William Haltom, Michael W. McCann, and Jeffrey Dudas, "Smoke and Mirrors: Framing Fights over Tobacco" (paper presented at the annual meeting of the Western Political Science Association, Long Beach, California, March 24, 2002); Michael McCann, William Haltom, and Anne Bloom, "Java Jive: Genealogy of a Juridical Icon," University of Miami Law Review, forthcoming.

38. Department of Health, Education, and Welfare, Medical Malpractice: Report of the Secretary's Commission on Medical Malpractice(Washington, D.C., January 16, 1973).

39. In 1976 the Ford administration convened a White House conference on product liability, and in 1979, during the Carter administration, a special task force produced a model uniform product liability act for the states. The Reagan administration's Tort Policy Working Group released a report urging several tort reforms, including the elimination of joint and several liability, limits on contingency fees, and a $100,000 cap on all noneconomic damages (interview with Victor Schwartz, general counsel, American Tort Reform Association, Washington, D.C., November 14, 2000; U.S. Interagency Task Force on Product Liability, Final Report: Executive Summary[Washington, D.C., 1977]; U.S. Department of Commerce, Uniform Product Liability Act: A Model for the States[Washington D.C.: 1979]; Tort Policy Working Group, Report on the Causes, Extent and Policy Implications of the Current Crisis in Insurance Availability and Affordability[Washington, D.C.: February 1986]).

40. Jim VandeHei, "Bush's Cherished Tort Reform Plans Survive Enron— Barely," Wall Street Journal, March 14, 2002, A20.

41. Eleanor D. Kinney, "Malpractice Reform in the 1990s: Past Disappointments, Future Success?" Journal of Health Politics, Policy and Law 20 (1995): 112.

42. U.S. Chamber of Commerce Institute for Legal Reform, A Primer on Civil Justice Reform at the Federal Level(Washington, D.C., July 1999).

43. Schwartz, interview; Linda Lipsen, "The Evolution of Products Liability," in Tort Law and the Public Interest, ed. Peter H. Schuck (New York: Norton, 1991), 254.

44. Richard A. Epstein, "The Political Economy of Product Liability Reform," American Economic Review 78 (1988): 311–315.

45. Harry Nelson, "Medical Crisis: Doctors Finding Insurance Scarce," Los Angeles Times, January 7, 1975, 1.

46. Charles Oliver, "Have States Killed Tort Reform?" Investor's Business Daily, April 16, 1996, A1.

47. American Tort Reform Association, State Tort Reform Enactments(Washington, D.C.: 1995, 1996, and 1997).

48. For example, a study found that states that modified their joint and several liability rules found little or no effect (Han-Duck Lee, Mark J. Browne, and Joan T. Schmit, "How Does Joint and Several Tort Reform Affect the Rate of Tort Filings? Evidence from the State Courts," The Journal of Risk and Insurance 61:2 [1994]:295–316). See also Glenn Blackmon and Richard Zeckhauser, "State Tort Reform Legislation: Assessing Our Control of Risks," in Tort Law and the Public Interest; Patricia Danzon, New Evidence on the Frequency and Severity of Medical Malpractice Claims(Santa Monica, Calif.: Rand Institute for Civil Justice, 1986); Stephen J. Carroll and Nicholas Pace, Assessing the Effects of Tort Reform(Santa Monica, Calif.: Rand Institute for Civil Justice, 1987); and U.S. Office of Technology Assessment, Impact of Legal Reforms on Medical Malpractice Costs(Washington, D.C.: October 1993).

49. Valerie P. Hans, Business on Trial: The Civil Jury and Corporate Responsibility(New Haven, Conn.: Yale University Press, 2000) 22–78; Valerie P. Hans and William S. Lofquist, "Jurors’ Judgments of Business Liability in Tort Cases: Implications for the Litigation Explosion Debate," Law and Society Review 26 (1992): 85–113. Whether this research demonstrates a change in attitude or simply a current of opinion that has always influenced jurors cannot be determined, because we do not have studies from earlier eras. Nor do we have evidence to indicate the extent to which antilitigation publicity campaigns by organizations such as Aetna have had an effect.

50. James Henderson and Theodore Eisenberg, "The Quiet Revolution in Products Liability: An Empirical Study of Legal Change," UCLA Law Review 37:3 (1990): 479–553; and "Inside the Quiet Revolution in Products Liability," UCLA Law Review 39:4 (1992): 731–810.

51. The beginning of this contraction came in Stone v. Powell, 428 U.S. 465 (1976); in McClesky v. Zant, 111 S. Ct. 1454 (1991), the Court expanded its "abuse of the writ" doctrine and promoted the state's interest in "finality."

52. Spencer Abraham, "Tough on Crime? Not the Clinton Justice Department," Wall Street Journal, September 25, 1996, A23.

53. Prisoner petitions constitute about one-quarter of the docket of U.S. district courts. Between 1992 and 1995, a period when overall federal district court filings grew by less than 10 percent, prisoner petitions rose by more than 25 percent, from forty-eight thousand to sixty-three thousand (Administrative Office of the United States Courts, Judicial Business of the U.S. Courts: 1996 Report of the Director[Washington, D.C.], 138, table C2A).

54. Margaret A. Jacobs, "Civil Rights Groups Fear Fast Senate Step," Wall Street Journal, April 21, 1995, B5.

55. Michael S. Greve, "Private Enforcement, Private Rewards: How Environmental Citizen Suits Became an Entitlement Program," in Environmental Politics: Public Costs, Private Rewards, ed. Michael S. Greve and Fred L. Smith, Jr. (New York: Praeger, 1992), 105–127.

56. Michael Grunwald, "Bush Seeks to Curb Endangered Species Suits," Washington Post, April 12, 2001, A2.

57. See Shapiro, Who Guards the Guardians; Melnick, Regulation and the Courts; and Rabkin, Judicial Compulsions. Cary Coglianese argues convincingly that the disruption created by lawsuits against one administrative agency, the Environmental Protection Agency, has been exaggerated (Coglianese, "Litigating within Relationships: Disputes and Disturbance in the Regulatory Process," Law and Society Review 30 (1996): 735–765).

58. On lower court deference to agencies, see Peter H. Schuck and E. D. Elliot, "To the Chevron Station: An Empirical Study of Federal Administrative Law," Duke Law Journal(1990): 984–1077. On the Supreme Court's post-Chevron jurisprudence, see Thomas W. Merrill, "Judicial Deference to Executive Precedent," Yale Law Journal 101 (1992): 969–1013; and Theodore W. Wern, "Judicial Deference to EEOC Interpretations of the Civil Rights Act, the ADA and the ADEA: Is the EEOC a Second Class Agency?" Ohio State Law Journal 60 (1999): 1533.

59. Hillary Stout, "Legal Services, the Agency That Wouldn't Die, Looks like It May Survive the Age of Gingrich," Wall Street Journal, July 21, 1995, 12; Richard B. Schmitt, "Legal Services for Poor Face Funding Woes in Congress," Wall Street Journal, July 25, 1994, B5. Congress has enacted a host of restrictions on the activities of lawyers receiving Legal Services Corporation (LSC) funding. For example, they generally cannot participate in class actions, win attorney's fees (even when permitted by statute), represent prisoners, or bring lawsuits regarding abortion. The Supreme Court, in Legal Services Corporation v. Velazquez(523 U.S. 903, 2001), overturned on First Amendment grounds a rule forbidding LSC-funded attorneys from challenging welfare laws in the course of representing their clients. Velazquez appears, however, to be a narrowly reasoned decision that does not portend judicial abolition of the many other restrictions Congress has imposed (Alan W. Houseman and Linda Perle, What Can and Cannot Be Done: Representation of Clients by LSC-Funded Programs [Center for Law and Social Policy, August 9, 2001], available at <http://www.clasp.org/pubs/legalservices/whatcancannot2001.pdf>, accessed March 26, 2002).

60. W. Kip Viscusi and colleagues found that significant reductions in general liability insurance costs resulted from caps on damages and elimination of the collateral source rule. They found that medical malpractice reforms, however, had little effect on malpractice insurance prices (W. Kip Viscusi et al., "The Effect of 1980s Tort Reform Legislation on General Liability and Medical Malpractice Insurance," Journal of Risk and Uncertainty 6 [1993]: 165–186). Others have found significant effects from the medical malpractice reforms. See, for example, Patricia Danzon, "The Frequency and Severity of Medical Malpractice Claims: New Evidence," Law and Contemporary Problems 49 (1986): 57–84; Drucilla Barker, "The Effects of Tort Reform on Medical Malpractice Insurance Markets: An Empirical Analysis," Journal of Health Politics, Policy and Law 17 (1992): 142–161; Daniel Kessler and Mark McClellan, "Do Doctors Practice Defensive Medicine?" Quarterly Journal of Economics 111 (1996): 353–390; and Albert Yoon, "Damage Caps and Civil Litigation: An Empirical Study of Medical Malpractice Litigation in the South," American Law and Economics Review 27 (2001): 199–227.

61. Auerbach, Justice without Law?

62. Ibid., 95–114.

63. For a fascinating review of the variety of motivations behind the ADR "movement," see Susan Silbey and Austin Sarat, "Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstruction of the Juridical Subject," University of Denver Law Review 66 (1989): 437–498.

64. Frank Sander, for example, began his influential paper on alternative dispute resolution by citing the need to protect courts from an ever expanding docket (Sander, "Varieties of Dispute Processing," in Pound Conference, 65–67).

65. Christine Harrington, Shadow Justice: The Ideology and Institutionalization of Alternatives to Court(Westport, Conn.: Greenwood Press, 1985).

66. Burger, "Agenda 2000 A.D.: A Need for Systematic Anticipation," in Pound Conference, 31, 35.

67. Edgar S. and Jean C. Cahn, "What Price Justice: The Civilian Perspective Revisited," Notre Dame Lawyer 41 (1966): 921–60; Richard Danzig, "Toward the Creation of a Complementary, Decentralized System of Criminal Justice," Stanford Law Review 26 (1973): 1–54.

68. Lauren B. Edelman and Mark C. Suchman, "When the Haves Hold Court: Speculations on the Organizational Internationalization of Law," Law and Society Review 33 (1999): 941.

69. "Editorial: Overdue Limit on Arbitration," San Francisco Chronicle, January 17, 2002, A24. For a thoughtful discussion of the issues raised by contractual arbitration in employment, see Eileen Silverstein, "From Statute to Contract: The Law of the Employment Relationship Reconsidered," Hofstra Labor and Employment Law Journal 18 (2001): 472.

Data systematically comparing arbitration and litigation outcomes are scarce, so claims about the relative fairness of contractual arbitration systems are hard to assess. One study found mean and median jury verdicts in employment discrimination cases were at least three times higher than the comparable mean and median arbitration awards (William M. Howard, "Arbitrating Claims of Employment Discrimination: What Really Does Happen? What Really Should Happen?," Journal of Dispute Resolution 50 [1995]: 40, cited in Lisa B. Bingham, "On Repeat Players, Adhesive Contracts, and the Use of Statistics in Judicial Review of Employment Arbitration Awards," McGeorge Law Review 28 (1998): n. 31). A 1989 study by the Securities and Exchange Commission found that the median arbitration award in disputes between investors and brokerage firms was 42 percent lower than the median award in court (Margaret A. Jacobs and Michael Siconolfi, "Losing Battles: Investors Fare Poorly Fighting Wall Street—and May Do Worse," Wall Street Journal, February 8, 1995, A1). First USA, a credit card issuer, disclosed in a class action lawsuit in 2000 that it had prevailed in 99.6 percent of 19,618 disputes with consumers that reached an arbitrator, but this lopsided record may simply reflect the case mix, mostly claims by First USA against delinquent payees (Caroline E. Mayer, "Win Some, Lose Rarely? Arbitration Forum's Rulings Called One-Sided," Washington Post, March 1, 2000, E1).

Although arbitration provisions in employment contracts are increasingly common, there have been reversals. After years of controversy over an arbitration system heavily criticized as unfair by the press, some securities companies have backed away from contractually obligated arbitration of employment disputes (Diane E. Lewis, "Women Get Day in Court," Boston Globe, May 16, 1999, G4; Margaret A. Jacobs, "Men's Club: Riding Crop and Slurs: How Wall Street Dealt with a Sex-Bias Case," Wall Street Journal, June 9, 1994, A1).

70. Christopher R. Drahozal, in his defense of contractual arbitration, identifies nearly a dozen bills before Congress that would restrict the practice (Drahozal, "‘Unfair’ Arbitration Clauses," University of Illinois Law Review[2001]: 695). Contractual arbitration is also the subject of a steady stream of legal challenges, some of which have reached the Supreme Court. In its most recent decision on contractual arbitration, EEOC v. Waffle House, 122 S. Ct. 754 (2002), the Court ruled that the federal Equal Employment Opportunity Commission (EEOC) could litigate an Americans with Disabilities Act discrimination claim even though the complainant in the case had signed away his own right to sue in court. Generally, though, the Court has been supportive of contractual arbitration, as in the most often cited arbitration case, Gilmer v. Interstate/Johnson Lane Company, 500 U.S. 20 (1991).

71. Jeb Barnes, "Bankrupt Bargain? Bankruptcy Reform and the Politics of Adversarial Legalism," Journal of Law and Politics 13 (1997): 893.

72. John W. Kingdon, Agendas, Alternatives, and Public Policies, 2nd ed. (New York: Harper Collins, 1995), 122.

73. Price V. Fishback and Shawn Everett Kantor, A Prelude to the Welfare State: The Origins of Workers’ Compensation(Chicago: University of Chicago Press, 2000).

74. Bob Van Voris, "New Terrorism Laws Raise Fears of Tort Reform," Recorder(November 29, 2001), 3; Juliet Eilperin, "Debating the Limits of Liability," Washington Post, November 17, 2001, A8.

75. [Note,] "Innovative No-Fault Tort Reform for an Endangered Specialty," Virginia Law Review 74 (1988): 1487.

76. For a description, see Richard L. Rabin, "Some Thoughts on the Efficacy of a Mass Toxics Administrative Compensation Scheme," University of Maryland Law Review 52 (1993): 956.

77. Paul Weiler reviews all the medical malpractice tort reforms that have been proposed and favors a no-fault system in Medical Malpractice on Trial(Cambridge, Mass.: Harvard University Press, 1991).

78. Rabin, "Some Thoughts on the Efficacy of a Mass Toxics Administrative Compensation Scheme."

79. George Miller, "Don't Let Industry Shirk Its Duty," and Gary Hart, "Let Government Bear Its Share," New York Times, September 5, 1982, F2.

80. Jeb Barnes, "Bankrupt Bargain?"

81. Kinney, "Malpractice Reform in the 1990s," 106; see also Patricia Danzon, "Tort Reform: The Case of Medical Malpractice," Oxford Review of Economic Policy 10:1 (1994): 84–98.

82. Under these laws, a custodial parent may apply to a state or local agency, which uses fixed rules to determine the appropriate level of support and enforces

83. Phillipe Nonet, Administrative Justice(New York: Russell Sage, 1969).

84. Milo Geyelin and James S. Hirsch, "Bumped Fliers Can Sue Airlines for Damages," Wall Street Journal, June 7, 1993, B1.

85. Ellen Ruppell Shell, "An Element of Doubt," Atlantic Monthly, December 1995, 24–39.

86. Mark Hansen, "Just Say ‘See You in Court,’" ABA Journal, December 1996, 30.

87. David E. Rosenbaum, "Going Easy on Parents Isn't So Easy," New York Times, May 6, 2000, sec. 4, p. 6.

88. Hillary Rodham proposed an array of rights for children, going so far as to suggest that age should be considered a "suspect classification" under the Constitution's Equal Protection Clause, since children are a "discrete and insular" minority. See Hillary Rodham, "Children under the Law," Harvard Educational Review 43 (1973): 512.

89. "No Lawyers for Kids," Wall Street Journal, November 8, 1994, B5; John Leo, "The Conflict over Children's Rights," San Diego Union-Tribune, August 27, 1992, B13.

90. But animal rights activists do seem to be making gains. A lawsuit filed under the Federal Animal Welfare Act gave a zoo visitor standing to sue the government to force it to create regulations concerning the living conditions of chimpanzees. See William Glaberson, "Legal Pioneers Seek to Raise Lowly Status of Animals," New York Times, August 18, 1999, A1.

91. Dietrich Rueschmeyer, "Comparing Legal Professions: A State-Centered Approach," in Lawyers in Society: Comparative Theories, ed. Richard L. Abel and Philip S. C. Lewis (Berkeley and Los Angeles: University of California Press, 1989), 3:306–308. On the political divisions within the American bar, see John P. Heinz and Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar(New York: Russell Sage Foundation, 1982).

92. Galanter shows that the correct figure for the U.S. share of lawyers is more like 25 to 33 percent, roughly the U.S. portion of world GNP (Galanter, "News From Nowhere," 78). The 70 percent figure was at one point quoted by antilitigation Supreme Court chief justice Warren Burger and has since echoed through the litigation debate. The $300 billion figure was made up from an executive's estimate of direct tort costs plus a very rough estimation of indirect costs. It almost certainly egregiously overestimates the true costs of the tort system (Galanter, "News from Nowhere," 83–90). Nor does each "excess" lawyer in the United States cost the nation $1 million, a figure estimated by antilitigation economist Stephen Magee (Galanter, "News from Nowhere," 81–83; see also Stephen P. Magee, "The Optimum Number of Lawyers: A Reply to Epp," Law and Social Inquiry 17 [1992]: 667–693; Charles R. Epp, "Do Lawyers Impair Economic Growth?" Law and Social Inquiry 17 [1992]: 585–623; and Frank B. Cross, "The First Thing We Do, Let's Kill All the Economists," Texas Law Review 70 [1992]: 645–683). Galanter's latest rebuttal to the claims of the tort

93. True to the title, Dan Quayle repeats both figures in his recent book Standing Firm without even addressing Galanter's refutation (Quayle, "Too Many Lawyers," in Standing Firm: A Vice Presidential Memoir[New York: Harper Collins, 1994], 282–290.

94. I thank William Haltom and Michael McCann for helping me to see the significance of this pattern in the academic community; see McCann, Haltom, and Bloom, "Java Jive." On the Manhattan Institute see note 16. Some examples of research deflating the claims of tort reformers are Hensler et al., Compensation for Accidental Injuries in the United States; Daniels and Martin, Civil Juries and the Politics of Reform; Hans, Business on Trial; Henderson and Eisenberg, "The Quiet Revolution," and "Inside the Quiet Revolution"; Galanter, "Introduction: Shadow Play: The Fabled Menace of Punitive Damages" (introduction to special issue on punitive damages), Wisconsin Law Review(1998): 1; Galanter, "Reading the Landscape of Disputes"; Miller and Sarat, "Grievances, Claims and Disputes"; and Brian Ostrom, Neal Kauder, and Robert C. LaFountain, Examining the Work of State Courts, 1999–2000(Williamsburg, Va.: National Center for State Courts, 2000). Two recent protort books by academics are Carl T. Bogus, Why Lawsuits Are Good for America(New York: New York University Press, 2001), and Thomas H. Koenig and Michael L. Rustad, In Defense of Tort Law(New York: New York University Press, 2001). It is important to distinguish between tort reform and replacement schemes such as nofault: there is much more support within academia for replacement efforts, and many academics—for example, Jeffrey O'Connell, Paul Weiler, and Steve Sugarman—have created replacement proposals (see n. 15).

95. See, for example, Richard L. Abel, "The Contradictions of Informal Justice," in The Politics of Informal Justice, vol. 1: The American Experience(New York: Academic Press, 1982); Harrington, Shadow Justice; Sally Engle Merry, "The Social Organization of Mediation in Nonindustrial Societies: Implications for Informal Community Justice in America," in The Politics of Informal Justice, vol. 2: Comparative Studies(New York: Academic Press, 1982), 17–45; Richard Delgado, "ADR and the Dispossessed: Recent Books about the Deformalization Movement," Law and Social Inquiry 13 (1988): 145–154; and Laura Nader, "The ADR Explosion: The Implications of Rhetoric in Legal Reform," Windsor Yearbook of Access to Justice 8 (1988): 269–291.

96. Owen Fiss, "Against Settlement," Yale Law Journal 93 (1984): 1073; Judith Resnik, "Managerial Judges," Harvard Law Review 96 (1982): 374–448.

97. The concept of the "one-shotter" was developed by Marc Galanter in his classic article "Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change," Law and Society Review 9 (1974): 95–151.

98. Robert Evans, director, Governmental Affairs Office, American Bar Association, telephone conversation with author, February 8, 2002.

99. Information obtained from the website of the Center for Responsive Politics, <http://www.opensecrets.org/lobbyists/> and <http://www.opensecrets.org/pacs/>, accessed April 1, 2002.

100. The organization was first called the National Association of Claimants Compensation Attorneys (NACCA), later becoming ATLA. For a brief history of NACCA's origins, see Samuel B. Horovitz, "NACCA and Its Objectives," NACCA Law Journal(1952): 7–36.

101. The story of the rise of the plaintiff bar is told by one of its pioneers, Stuart M. Speiser, in Lawyers and the American Dream(New York: M. Evans, 1993). Speiser recounts Belli's crusade to educate the plaintiff bar and ATLA's development as an information-sharing forum for plaintiff lawyers at 222–236.

102. Interview with C. Thomas Bendorf, former lobbyist, Association of Trial Lawyers of America, Turton, S.D., August 6, 1994.

103. Interview with Alan A. Parker, senior director for public affairs, ATLA, 1984–94, Vienna, Va., July 12, 1994.

104. Speiser, Lawyers and the American Dream, 19.

105. Glenn R. Simpson, "Study of Trial Lawyers Finds Eight May Have Exceeded $25,000 Limit," Roll Call(May 1, 1995), 14; Jill Abramson and Amy Stevens, "Class-Action Clash: King of ‘Strike Suits’ Finds Style Cramped by Legal-Overhaul Bill," Wall Street Journal, March 30, 1995, A1.

106. The most prominent of the Pound-funded studies is Michael Rustad's work on punitive damages, which found them far less common than many suppose (Rustad, Demystifying Punitive Damages in Products Liability Cases[Washington, D.C.: Roscoe Pound Foundation, 1991]).

107. Rowland Evans and Robert Novak, "America's Most Powerful Lobby," Reader's Digest, April 1994, 131–35.

108. Interview with Pamela Gilbert, director, Public Citizen Congress Watch, Washington, D.C., June 10, 1994.

109. Interview with Ralph Nader, Washington, D.C., May 2, 1994.

110. Interview with Linda Lipsen, public affairs director, ATLA, Washington, D.C., July 7, 1994; Andrew Blum, "Trial Lawyers Set to Get Tough," National Law Journal(July 31, 1995), A6.

111. I derived this number using a list of such cases provided by the American Tort Reform Association that was updated through June 2001. Tort reformer Victor Schwartz, whose count (unlike mine) extends back to before 1990, identified a total of ninety-one state court decisions holding tort reform laws unconstitutional (Victor Schwartz and Leah Lorber, "Judicial Nullification of Tort Reforms: A Call to Arms to Stop It Now," Metropolitan Corporate Counsel[April 2000], 39). ATLA has provided much of the expertise in the tort reform lawsuits; in 2001, the association created the Center for Constitutional Litigation to support the work of challenging state tort laws (Fred Baron, "ATLA Helps Knock Down Florida ‘Tort Reform’ Law," Trial[April 2001], 9). For two competing perspectives on judicial review of tort reform legislation, see Robert S. Peck, "In Defense of Fundamental Principles: The Unconstitutionality of Tort Reform," Seton Hall Law Review 31 (2001): 672; and Victor Schwartz, "Judicial Nullification of Tort Reform: Ignoring History, Logic, and Fundamentals of Constitutional Law," Seton Hall Law Review 31 (2001): 688.

112. Deborah Goldberg, Craig Holman, and Samantha Sanchez, The New Politics of Judicial Elections: How 2000 Was a Watershed Year for Big Money,

113. Barry Bauman, Lawyers for Civil Justice, telephone conversation with author, April 5, 2002.

114. Michael McCann, Taking Reform Seriously: Perspectives on Public Interest Liberalism(Ithaca, N.Y.: Cornell University Press, 1986), 108.

115. An antilitigation workers’ compensation reform plan proposed by California Governor Pete Wilson was an example, Nader said, of "Marie Antoinette morality" and "a consistent display of cruelty" (Vlae Kershner, "Nader Blasts Worker Comp Plan," San Francisco Chronicle, October 21, 1992). The antilitigation advertising campaign sponsored by Aetna, Nader said, would make "even the most adept Kremlin propagandist… proud" (Nader, "Keynote Address, Symposium on the Future of Tort Litigation in California," Santa Clara Law Review 29 (1989): 511). For some other examples of Nader's prolitigation rhetoric, see Nader, "The Assault on Injured Victims Rights," Denver University Law Review 64 (1988): 625–39; "The Corporate Drive to Restrict Their Victims’ Rights," Gonzaga Law Review 22 (1986): 15–29; and Nader and Joan Claybrook, "Preserving a Pillar of Our Democracy," Trial 27:12 (1991): 45.

116. Nader, "Keynote Address," 518.

117. Nader, "The Trial Bar and the Public Interest," Trial Lawyers Quarterly 19:3 (1988): 8, 16.

118. The story is told in David Sanford's relentlessly critical book, Me & Ralph: Is Nader Unsafe for America?(Washington, D.C.: New Republic, 1976), 33–47.

119. Tatiana Boncompagni, "Nader Faces Trial Lawyer Backlash over Gore Defeat," Recorder(February 13, 2001), 3. Nader identifies Baron as "a friend for thirty years" who, inspired by a Nader speech while in law school, changed his career aspirations from tax to tort law, becoming a "pioneering trial lawyer" (Nader, Crashing the Party: Taking on the Corporate Government in an Age of Surrender[New York: St. Martin's Press, 2002], 262).

120. Ibid., 262–66.

121. Charles McCarry, Citizen Nader(New York: Saturday Review Press, 1972), 197.

122. Nader, interview, May 2, 1994.

123. Ibid.; and Nader, "The Trial Bar and the Public Interest," 9–10.

124. "These executives like routine. They use the word ‘predictability.’ They don't like to have their golf game disturbed on weekends. Litigation upsets them in that way and the economic cost is trivial." Nader, "Keynote Address," 513.

125. Nader, "Trial Lawyers and the Public Interest," 9.

126. Nader, interview.

127. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), in which the Court ruled that the plaintiffs lacked standing under the Endangered Species Act because they failed to allege concrete injuries. In Bennett v. Spear, 117 S. Ct. 1154 (1997), however, the Court found that property owners, along with environmentalists, can have standing under the act.

128. Rust v. Sullivan, 500 U.S. 173 (1991).

129. Amchem Products v. Windsor, 521 U.S. 591 (1997).

130. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Kumho Tire v. Carmichael, 526 U.S. 137 (1999).

131. Felker v. Turpin, 519 U.S. 989 (1996).

132. Seminole Tribes v. Florida, 517 U.S. 44 (1996); City of Boerne v. Flores, 521 U.S. 507 (1997); Alden v. Maine, 527 U.S. 706 (1999); College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999); Kimel v. Florida Board of Regents, 528 U.S. 62 (2000); and University of Alabama v. Garrett, 531 U.S. 356 (2001).

133. United States v. Morrison, 529 U.S. 598 (2000), struck down the Violence against Women Act; Bourne v. Flores overturned the Religious Freedom Restoration Act as applied to states; Kimel v. Florida and Alabama v. Garrett ruled that state sovereignty as recognized in the Eleventh Amendment precluded citizen lawsuits for money damages against the states under the Age Discrimination in Employment Act and the Americans with Disabilities Act, respectively.

134. BMW of North America v. Gore, 517 U.S. 559 (1996). In the case, the jury's punitive damage award was more than five hundred times actual damages.

135. Honda Motor Co. v. Oberg, 517 U.S. 1219 (1994).

136. Stuart Taylor, Jr., "Not So Conservative: The Supreme Court and the Disability Decisions," National Journal, July 3, 1999, 1933.

137. Lori Johnson, "Congress versus the Judicial Branch in the Battle over the Scope of Federal Court Jurisdiction" (paper presented at the annual meeting of the Western Political Science Association, Long Beach, Calif., March 24, 2002). See also Ann Althouse, "Inside the Federalism Cases: Concern about Federal Courts," Annals of the American Academy of Political and Social Science 574 (2001): 132.

138. Some works that have influenced my approach to case study research are Gary King, Robert O. Keohane, and Sidney Verba, Designing Social Inquiry: Scientific Inference in Qualitative Research(Princeton, N.J.: Princeton University Press, 1994); Alexander George, "Case Studies and Theory Development: The Method of Structured, Focused Comparison, in Diplomacy: New Approaches in History, Theory and Policy, ed. Paul Gordon (New York: Free Press, 1979), 43–68; Harry Eckstein, "Case Studies and Theory Development," in Handbook of Political Science, vol. 7: Strategies of Inquiry, ed. Fred Greenstein and Nelson W. Polsby (Reading, Mass.: Addison-Wesley, 1975); David Collier, "The Comparative Method: Two Decades of Change," in Comparative Political Dynamics: Global Research Perspectives, ed. Dankwart A. Rustow and Kenneth Paul Erickson (New York: Harper Collins, 1991), 7–31; Charles Ragin, The Comparative Method: Moving beyond Qualitative and Quantitative Strategies(Berkeley and Los Angeles: University of California Press, 1987); and Robert Yin, Case Study Research: Design and Methods(Beverly Hills, Calif.: Sage, 1984).

139. In small-nstudies the purpose of case selection is to maximize the range of values for the most significant variables, those that theory suggests are crucial. The researcher should try to get as much variety as possible so that all the mechanisms that shape relationships between variables can be assessed. Guided by this

Although the small-ndesign limits the scope of this study's conclusions, in a few instances more rigorous tests of theories are conducted. For example, within two of the cases, I employ a roll-call vote study to test a theory about the behavior of lawyer legislators. In addition, at several points, particularly the conclusion, I expand my number of cases (n) by considering comparable cases in the United States or comparisons with patterns of policy in other industrialized nations.

The case studies are detailed descriptions that include measurements of all the variables suggested by the explanations considered. The narratives of each case were generated from a variety of sources, including court cases, reports, hearings, and floor debates. For the case studies, I interviewed sixty participants, some in person, others by telephone. The interviews ranged in length from five minutes to two hours. The interviews are footnoted wherever data from them is introduced, with only a few exceptions—for five of the interviews I agreed not to cite the participant by name. There was no attempt to standardize interviews since participants were involved in many different aspects of the cases. Interviewees were selected from references in primary and secondary documents and by referral—a "snowball sampling" technique appropriate for narrative case studies. Where possible and helpful for measuring variables I gathered quantitative data, including the roll-call votes.

140. I define a "serious attempt" to include any bill or amendment on which a hearing or a floor debate has been held. This simply eliminates bills that are introduced but gather dust and cases in which new litigation rights are enacted but are not opposed. The fact that in some cases new litigation rights are created without any opposition is, as I have suggested, theoretically interesting and worthy of study in itself. This study is, however, limited in scope to antilitigation efforts.

1. These statistics come from the 1998 National Organization on Disability/Harris Survey of Americans with Disabilities(New York: Lou Harris and Associates, 1998), 15, exhibit 1.

2. The 43 million figure appears in the preamble of the Americans with Disabilities Act (ADA) (U.S. Code, vol. 42, sec. 12101(a)1 [1990]). A more appropriate measure of disability, according to some researchers, is the number of people who are limited in their abilities to perform everyday activities. This approach generates an estimate of 36 million, including 2 million people in institutionalized

The ADA itself defines disability as "a physical or mental impairment that substantially limits one or more… major life activities," though the law also applies to those who have "a record of such an impairment" or are "regarded as having such an impairment" (U.S. Code, vol. 42, sec. 12102[2]). Courts have narrowly interpreted these provisions, so that the number of people actually covered by the ADA may be much lower than the 43 million cited in the statute's preamble.

3. Deborah Stone traces the evolution of the concept of disability in The Disabled State(London: Macmillan, 1984).

4. U.S. Code, vol. 42, sec. 12112.

5. Ibid., secs. 12131, 12148, 12181, 12182, 12183.

6. Ibid., secs. 12131, 12181, 12182, 12183, 12188.

7. "The Lawyer's Employment Act" [editorial], Wall Street Journal, September 11, 1989, A18.

8. Paul K. Longmore and David Golberger document a fascinating spurt of 1930s disability activism, the formation and dissolution of the League of the Physically Handicapped. League members, like disability activists much later in the twentieth century, protested against government programs that treated them as helpless children; they demanded that the Works Projects Administration (WPA) provide jobs equally to the disabled and nondisabled (Longmore and Goldberger, "The League of the Physically Handicapped and the Great Depression: A Case Study in the New Disability History," The Journal of American History 87 (2000): 888–922). The National Association of the Deaf fought employment discrimination beginning in the early twentieth century and protested laws prohibiting deaf people from obtaining driver's licenses in the 1940s. Organizations for blind people pushed for laws, first enacted in the 1930s, protecting guide dogs and white canes. Congress banned discrimination against people with disabilities in the civil service in 1948. Five states adopted similar bans; a few even had nondiscrimination laws in certain job categories, particularly teaching. See Jacobus ten Broek, "The Right to Live in the World: The Disabled and the Law of Torts," California Law Review 54 (1966): 846.

Rita Varela notes that the issue of access for mobility-impaired people was raised in the 1950s by paralyzed veterans, who fought for accessible facilities at Veterans Administration hospitals. In 1959 several disability groups met with the American Standards Association to agree on a set of standards for architectural accessibility. These standards were adopted by many states in the mid-1960s as part of building accessibility laws and eventually by the federal government for its buildings. See Varela, "Changing Social Attitudes and Legislation Regarding Disability," in Independent Living for Physically Disabled People, ed. Nancy M. Crewe and Irvina Kenneth Zola (San Francisco: Jossey-Bass, 1983), 28–48. These early laws were generally enforced by administrative mechanisms. An exception was Wisconsin's accessibility law, which created a private right of action (ten Broek, "The Right to Live in the World," 863).

9. Susan M. Olson, Clients and Lawyers: Securing the Rights of Disabled Persons(Westport, Conn.: Greenwood Press, 1984), 42.

10. Richard K. Scotch, From Good Will to Civil Rights(Philadelphia: Temple University Press, 1984), 36.

11. Edward D. Berkowitz, "The American Disability System in Historical Perspective," in Disability Policies and Government Programs, ed. Edward Berkowitz (New York: Praeger, 1979), 44–45.

12. Gerben DeJong, The Movement for Independent Living: Origins, Ideology and Implications for Disability Research(Boston: Medical Rehabilitation Institute, Tufts-New England Medical Center, March 1979), 34–36.

13. Ibid., 60.

14. Edward D. Berkowitz, Disabled Policy: America's Programs for the Handicapped(New York: Cambridge University Press, 1987), 203.

15. Institute for Educational Leadership, Challenges of Emerging Leadership: Community-Based Independent Living Programs and the Disability Rights Movement(Washington, D.C., 1982), 21–22.

16. Olson, Clients and Lawyers, 46.

17. Jacobus ten Broek, "The Disabled and the Law of Welfare," California Law Review 54 (1966): 809; and "The Right to Live in the World," 841.

18. In Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 343 F. Supp. 279 (1972), a federal court concluded that the plaintiffs had a "colorable claim" under both the Equal Protection Clause and the Due Process Clause in approving a settlement reached between the parties, but the court did not reach the issue of suspect or semisuspect status. In Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866 (1972), the court found a violation of the Due Process Clause because the district was excluding mentally retarded children from schooling, but the decision also rested on local statutes. These cases paved the way for the 1975 passage of the Education for All Handicapped Children Act, which guaranteed all children with disabilities a "free, appropriate education." (On the enactment of the Education for all Handicapped Children Act, see R. Shep Melnick, Between the Lines: Interpreting Welfare Rights[Washington, D.C.: Brookings Institution, 1994], 135–159.) The clearest discussion of the place of the disabled in constitutional law came much later, in Cleburne v. Cleburne Living Centers, 473 U.S. 432 (1985). Here the Supreme Court ruled that the mentally retarded were not a suspect class deserving of special protection under the Fourteenth Amendment.

19. Interviews with Evan Kemp and Bob Funk, Washington, D.C., December 16, 1993, and with Lex Frieden, Washington D.C., April 21, 1994. Funk contends that the civil rights model might not have come to prominence if not for 504, because the proponents of independent living were interested mainly in creating a more effective model of service delivery. Frieden notes that in Berkeley one could quite easily see the distinction between the two parts of the disability movement: "CIL [The Center for Independent Living] was on one side of Telegraph Avenue and DREDF [the Disability Rights and Education Defense Fund] was on the other side of the street. And a lot of times that street was pretty wide. There were differences of opinion even on Telegraph Avenue on where the movement should go, and there still are." In contrast, Arlene Mayerson, a top DREDF attorney, sees little distinction between the independent living movement and the civil rights movement (interview with Mayerson, Berkeley, Calif., June 2, 1994).

20. Robert A. Katzmann, Institutional Disability: The Saga of Transportation Policy for the Disabled(Washington, D.C.: Brookings Institution, 1986), 46.

21. Scotch, From Good Will to Civil Rights, 44–45.

22. Ibid., 51–52.

23. Katzmann, Institutional Disability, 47.

24. Rehabilitation Act of 1973, U.S. Code, vol. 28, sec. 794(a) (1998).

25. Katzmann, Institutional Disability, 53.

26. Scotch, From Good Will to Civil Rights, 63.

27. Ibid., 75.

28. Scotch, From Good Will to Civil Rights, 46.

29. Interview with Robert Funk, former executive director, DREDF, Washington D.C., December 16, 1993.

30. Edward V. Roberts, "Into the Mainstream: The Civil Rights of People with Disabilities," Civil Rights Digest(winter 1979), 23–24.

31. Susan Olson notes that the bylaws of the National Federation of the Blind went so far as to prohibit coalitions with other disability groups (Olson, Clients and Lawyers, 48).

32. Robert Funk, "Disability Rights: From Caste to Class in the Context of Civil Rights," in Images of the Disabled, Disabling Images, ed. Alan Gartner and Tom Joe (New York: Praeger, 1986), 7.

33. Frank Bowe, Handicapping America: Barriers to Disabled People(New York: Harper and Row, 1978), 224. See also Harlan Hahn, "Disability Policy and the Problem of Discrimination," American Behavioral Scientist 28:3 (1985): 293–318.

34. Evan Kemp, Jr., "Aiding the Disabled: No Pity, Please," New York Times, September 3, 1981, A19.

35. Bowe, Handicapping America, 171.

36. Kemp, "Aiding the Disabled."

37. Joseph P. Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement(New York: Times Books, 1993), 22.

38. See Harlan Hahn, "Civil Rights for Disabled Americans: The Foundation of a Political Agenda," in Images of the Disabled, Disabling Images, 188.

39. John Gliedman and William Roth, The Unexpected Minority: Handi capped Children in America(New York: Carnegie Corporation, 1980), 34. Renee Anspach sees in disability activism a kind of identity politics (Anspach, "From Stigma to Identity Politics: Political Activism among the Physically Disabled and Former Mental Patients," Social Science and Medicine 13 [1979]: 765–773).

40. APTA v. Lewis, 655 F. 2d 1272 (D.C. Cir., 1981).

41. For examples of backlash reportage, see Henry Fairlie, "We're Overdoing Help for the Handicapped," Washington Post, June 1, 1980, D1; and "Must Every Bus Kneel to the Disabled?" New York Times, November 18, 1979, 18E.

42. Charles R. Babcock, "Handicapped Policy Undergoing a Rewrite," Washington Post, March 2, 1982, A27; Felicity Barringer, "How Handicapped Won Access Rule Fight," Washington Post, April 12, 1983, A10.

43. Funk, interview; Barringer, "How Handicapped Won Access Rule Fight."

44. Interview with C. Boyden Gray, White House counsel in the George H.

45. Interview with Evan Kemp, Jr., Washington, D.C., December 16, 1993.

46. Interviews with Gray, Kemp, and Funk.

47. Katzmann, Institutional Disability, 125. David Pfeiffer, a disability activist and historian of the disability movement, argues that the Reagan administration's turn on Section 504 arose from its interest in the two "Baby Doe" cases, which involved controversy over whether to provide lifesaving medical treatments to disabled babies. The administration found Section 504 useful in arguing that treatment should be provided (telephone conversation with author, May 6, 1996).

48. Interview with Pat Wright, executive director, DREDF, Washington, D.C., February 3, 1994.

49. Gray, interview.

50. National Council on the Handicapped, Toward Independence: An Assessment of Federal Laws and Programs Affecting Persons with Disabilities— with Legislative Recommendations(Washington, D.C.: Government Printing Office, 1986), iv.

51. Interview with Justin Dart, Jr., Washington, D.C., June 18, 1994.

52. Justin W. Dart, Jr., "The ADA: A Promise to Be Kept," in The Americans with Disabilities Act: From Policy to Practice, ed. Jane West (New York: Milbank Memorial Fund, 1991), xxi.

53. Dart, interview.

54. Ibid.

55. Dart, "The ADA: A Promise to Be Kept," xxii.

56. National Council on the Handicapped, U.S. Department of Education, National Policy for Persons with Disabilities(Washington, D.C., 1983), 7.

57. U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities(Washington, D.C., September 1983).

58. Robert Burgdorf and Christopher Bell, "Eliminating Discrimination against Physically and Mentally Handicapped Persons: A Statutory Blueprint," Mental and Physical Disability Law Reporter 8 (1984): 64.

59. Interview with Robert Burgdorf, Jr., Washington, D.C., February 23, 1994.

60. Interviews with Dart, Frieden, and Burgdorf.

61. National Council on the Handicapped, Toward Independence, 1.

62. Ibid., 12.

63. Ibid., 1.

64. Ibid., 2. In her transmittal letter to President Reagan, Chairperson Parrino argued that if the recommendations of the council were implemented, "current Federal expenditures for disability can be significantly redirected from dependency-related approaches to programs that enhance independence and productivity of people with disabilities, thereby engendering future efficiencies in Federal spending" (ii).

65. Ibid., 8.

66. Ibid.

67. Ibid.

68. Ibid., 20.

69. See generally Katzmann, Institutional Disability.

70. Justin Dart, Jr., interview.

71. Reagan responded in a written statement: "I agree with the goals implicit in Toward Independence—equal opportunity and full social participation for all Americans, and I am pleased to see that your report sets forth a comprehensive agenda for progress toward these goals. … [However] the road toward full independence will not be easy" (Ronald Reagan, January 1986, quoted in National Council on the Handicapped, On the Threshold of Independence: A Report to the President and to the Congress of the United States[Washington, D.C., January 1988], xvii).

72. Louis Harris and Associates, The ICD Survey of Disabled Americans: Bringing Disabled Americans into the Mainstream(New York, March 1986).

73. National Council on the Handicapped, On the Threshold of Independence, 25–39.

74. S.R. 2345, 100th Cong., 2d sess., Congressional Record(hereafter cited as Cong. Rec.), daily ed. (April 28, 1988): S5089; H.R. 4498, 100th Cong., 2d sess., Cong. Rec., daily ed. (April 19, 1988), H2757.

75. Julie Kosterlitz, "Joining Forces," National Journal(January 28, 1989), 194; United States Presidential Commission on the Human Immunodeficiency Virus Epidemic (1988), 123, reproduced in U.S House of Representatives, Committee on Education and Labor, Legislative History of the Americans with Disabilities Act(Washington, D.C.: Government Printing Office, 1990), 981.

76. Shapiro, No Pity, 96.

77. Phil McCombs, "The Distant Drum of C. Boyden Gray," Washington Post, March 31, 1989, D1–D8; Gray, interview.

78. Interview with Bill Roper, former deputy assistant to the president for domestic policy, Atlanta, Ga., June 6, 1994. Roger Clegg, a deputy assistant attorney general in the civil rights division, remembers that he expressed "fundamental misgivings" but recalls only limited public discussion in the White House over the merits of the ADA (interview with Roger Clegg, Washington D.C., May 17, 1994).

79. Interview with Robert Silverstein, chief counsel, Senate Subcommittee on Disability, Washington, D.C., December 16, 1993.

80. Paula Yost, "Tedious Meetings, Testy Exchanges Produced Disability-Rights Bill," Washington Post, August 7, 1989, A4.

81. Interview with Chai Feldblum, former legislative counsel, AIDS Project, American Civil Liberties Union, Washington, D.C., March 21, 1994; interview with Pat Wright, executive director, DREDF, Washington, D.C., February 3, 1994.

82. Interview with Arlene Mayerson, DREDF, Berkeley, Calif., June 2, 1994.

83. Interview with Ralph Neas, Washington, D.C., July 19, 1994.

84. Ibid.

85. Ibid.

86. 465 U.S. 555 (1984).

87. Consolidated Rail Corporation v. LeStrange Darrone, 465 U.S. 102 (1984).

88. Jane West, "Moving toward the Mainstream: Disability Rights Policy and Politics in the 100th Congress" (Jane West and Associates, Chevy Chase, Md., 1992, photocopy), 56–57.

89. Wright, interview.

90. NFIB representative Sally Douglas argued in congressional testimony that the ADA was in fundamental respects different from other civil rights laws because it (1) covered a broader scope of private businesses, (2) required affirmative and possibly costly actions by a business, (3) had stiffer remedies, and (4) was more adversarial and legalistic in tone. Thus far more compromise was necessary, Douglas argued, to make the bill workable and fair. See "Statement of Sally Douglas, National Federation of Independent Business," in House Committee on Labor and Human Resources and Senate Subcommittee on the Handicapped, Americans with Disabilities Act of 1989: Hearings on S. 933, 101st Cong., 1st sess., May 10, 1989, 499–511.

91. Interview with John Motley, director of federal governmental relations, National Federation of Independent Businesses, Washington, D.C., June 9, 1994.

92. Sara Watson makes this point in her article "A Study in Legislative Strategy: The Passage of the ADA," in From Policy to Practice, 25–34.

93. Interviews with John Tysse, lobbyist, Labor Policy Association, Washington, D.C., May 27, 1994; Wendy Lechner, legislative representative, National Federation of Independent Businesses, Washington, D.C., July 29, 1994; Lawrence Lorber, lobbyist, National Association of Manufacturers, Washington, D.C., May 19 and 26, 1994; and Bill Roper.

94. Quoted by Senator Tom Harkin, House Committee on Labor and Human Resources and Senate Subcommittee on the Handicapped, Americans with Disabilities Act of 1989, May 9, 1989, 23.

95. Testimony of Richard L. Thornburgh, Attorney General of the United States, Senate Committee on Labor and Human Resources and Subcommittee on the Handicapped, Americans with Disabilities Act of 1989, June 22, 1989.

96. Americans with Disabilities Act, sec. 12188.

97. Letter from Attorney General Richard Thornburgh, March 12, 1990, quoted in Cong. Rec., daily ed. (May 29, 1990), 101st Cong., 2d sess., H2613.

98. Cong. Rec., daily ed. (September 7, 1989), 101st Cong., 1st sess., S10714.

99. At a hearing in which one NFIB member attacked several provisions in the bill, Bartlett criticized the member for not providing concrete advice: "I am not suggesting you didn't give us good testimony, you did, but your testimony doesn't lead us anywhere" (House Committee on Education and Labor, Legislative History of Public Law 101–336: The Americans with Disabilities Act of 1989, 101st Cong., 2d sess., 1990, Committee Print, 2:1651).

100. See Cong. Rec., daily ed. (May 17, 1990), 101st Cong., 2d sess., H2472. A ceiling on reasonable accommodations amounting to 10 percent of an employee's annual wages was defeated on the House floor, 187 to 213 (see ibid., H2475).

101. "Bush Vetoes Job Bias Bill; Override Fails," 1990 Congressional Quarterly Almanac, 462–73.

102. Letter from Attorney General Richard Thornburgh.

103. Interviews with Silverstein, Wright, and Feldblum.

104. Cong. Rec., daily ed. (May 22, 1990), 101st Cong., 1st sess., H2612.

105. Ibid., H2615.

106. Ibid.

107. Ibid., H2616.

108. Testimony of Sandra Parrino, chairperson, National Council on the Handicapped, in House Committee on Education and Labor, Legislative History of Public Law 101–336, 2:955.

109. Testimony of Lisa Carl, May 10, 1989, in House Committee on Labor and Human Resources and Senate Subcommittee on the Handicapped, Americans with Disabilities Act of 1989, 64–65.

110. Testimony of Betty Correy and Emory Correy, May 10, 1989, in ibid.,102.

111. Testimony of Tony Coelho, September 27, 1988, House Committee on Education and Labor, Legislative History of Public Law 101–336, 2:939–40.

112. Some of these divergences are discussed in U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities, 142–158; and Jane West, "The Evolution of Disability Rights," in From Policy to Practice, 4–9.

113. U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities, 144.

114. In the Harris survey commissioned by the National Council on the Handicapped, disabled people were asked which was more of an obstacle to a better job, employer reactions to their disability or the disability itself. Seventyone percent said that the disability was more of a barrier; only 18 percent thought employer reactions were more important. Thus the respondents disagreed with a central tenet of the rights model, that socially imposed barriers limit disabled people more than their physical impairments (Louis Harris and Associates, The ICD Survey of Disabled Americans, 79).

115. In addition, only 45 percent of the survey respondents agreed that disabled people "are a minority group in the same sense as are blacks and Hispanics." Among those who considered themselves disabled, 46 percent said they had a "very strong" or "somewhat strong" sense of common identity with other disabled people, while 35 percent said they had "some sense" and 8 percent said they had no sense of common identity at all (Ibid., 15, 114, 111).

116. According to the Harris survey, 13 percent of all disabled people acquired their condition at birth or in adolescence (Ibid., 27, table 9).

117. The National Federation of Independent Businesses (NFIB) was the most critical of the business groups and thus at times pointed to some of the divergences between disability rights law and traditional civil rights law (see note 90).

In floor debate and hearings on the ADA I could locate only one instance in which a member of Congress directly challenged the civil rights model. Bud Shuster, a representative from Pennsylvania, argued that the ADA was not a civil rights bill, because it was riddled with exceptions and compromises: "Mr. Chairman, by calling this a civil rights bill, that does not make it a civil rights bill except that I suppose we can do anything we want to do in this Congress in terms of passing laws, using whatever words we choose to use. However, if my colleagues look at the logic of this bill, there are numerous exceptions to it" (Congr. Rec., daily ed. [May 17, 1990], 101st Cong., 2d sess., H2437). Shuster favored reducing mandates on local transit systems and argued that mandates in the ADA should be evaluated strictly on a cost-benefit basis, not as a matter of civil rights. One subtle way in which members of Congress undermined the rights model was

In floor debate and in the hearings I could locate only one suggestion of a nonlitigious alternative to the ADA. During final consideration of the ADA on the Senate floor, Senator Armstrong suggested that Congress should have created a tax credit. He called the ADA "a legislative Rorschach test, an inkblot whose meaning and significance will be determined through years of costly litigation." Armstrong did, however, vote for passage (Cong. Rec., daily ed. [July 13, 1990], 101st Cong., 2d sess., S9694).

118. Gary Orfield tells this story in his book The Reconstruction of Southern Education: The Schools and the 1964 Civil Rights Act(New York: John Wiley, 1969).

119. Gerald Rosenberg argues that the role of litigation in the achievement of civil rights has been greatly exaggerated. See Rosenberg, The Hollow Hope: Can Courts Bring About Social Change?

120. See Mark C. Miller, The High Priests of American Politics: The Role of Lawyers in American Political Institutions(Knoxville, Tenn.: University of Tennessee Press, 1995), 57–75.

121. Bonnie Tucker, "Section 504 of the Rehabilitation Act after Ten Years of Enforcement: The Past and the Future," University of Illinois Law Review(1989): 877.

122. Although this case is about judicial enforcement as an alternative to agency enforcement rather than judicial review of agency decisions, it does seem to provide some support to Charles Shipan's approach to modeling interest group and legislator choices about judicial review provisions. Shipan argues that experiences with agencies and courts, institutional theories about the capabilities of the two, an understanding of the dominant legal philosophies of the day, and recognition of the capacities of other interest groups all shape preferences over judicial review (Shipan, Designing Judicial Review, 15–36). The case of the ADA demonstrates how experiences and institutional theories can shape preferences. But notice that all actors in this case assumed courts would be involved. This makes it hard to know exactly what was behind their preferences and whether their preferences were as goal directed as both Shipan's account and mine suggests.

123. See Katzmann, Institutional Disability, for a full account.

124. See Stephen L. Percy, "ADA, Disability Rights, and Evolving Regulatory Federalism," Publius 23:4 (1993): 87–105. By the late 1980s forty-six states had laws regarding discrimination against disabled people in employment. The ADA leaves these laws in place but adds ADA regulations on top of them.

125. Civil rights activists attempted to empower the EEOC to enforce its own rulings, through "cease and desist" orders, but this was resisted on several grounds. Opponents argued, for example, that it "would be inconsistent with our system of division of government powers to subject state and local authorities to the cease-and-desist power of a federal commission" (House Committee on Education and Labor, Equal Employment Opportunities Enforcement Act of 1971, 64, quoted in Landsberg, Enforcing Civil Rights, 68).

126. Stanley Herr, "Reforming Disability Nondiscrimination Laws: A Comparative Perspective," University of Michigan Law Review, forthcoming. In

127. Kathryn Moss et al., "Unfunded Mandate: An Empirical Study of the Implementation of the Americans with Disabilities Act by the Equal Employment Opportunity Commission," Kansas Law Review 50 (2001): 1.

128. Sutton v. United Air Lines, 527 U.S. 471 (1999).

129. Chai R. Feldblum, "Definition of Disability under Federal Anti-Discrimination Law: What Happened? Why? and What Can We Do about It?" Berkeley Journal of Employment and Labor Law 21 (2000): 91; Bonnie Poitras Tucker, "The Supreme Court's Definition of Disability under the ADA: A Return to the Dark Ages," Alabama Law Review 52 (2000): 321; and Matthew Diller, "Judicial Backlash, the ADA, and the Civil Rights Model," Berkeley Journal of Employment and Labor Law 21 (2000): 19. A study by Ruth Colker found that defendants prevailed in around 93 percent of ADA employment discrimination trials from 1992 to 1998 (Colker, "The Americans with Disabilities Act: A Windfall for Defendants," Harvard Civil Rights–Civil Liberties Law Review 34 [1999]: 99). As an indicator of the effectiveness of the ADA, this figure should be interpreted with some caution, since defendants may be settling strong claims before trial and fighting only weak claims in court. See Scott Burris et al., "Disputing under the Americans with Disabilities Act: Empirical Answers, and Some Questions," Temple Political and Civil Rights Law Review 9 (2000): 237.

130. Herr, "Reforming Disability Nondiscrimination Laws."

131. Interviews with Torbjorn Andersson, legal adviser, Labor Law, and with Lars Loow, head of the Office of the Disability Ombudsman, both Stockholm, Sweden, March 8, 2002.

132. European Union, European Council Directive 2000/78/EC, Official Journal of the European Communities, November 27, 2000.

133. Brian Doyle, Disability, Discrimination and Equal Opportunities: A Comparative Study of the Employment Rights of Disabled Persons(London: Mansell, 1995), 260.

134. Lisa Waddington, Disability, Employment and the European Community(Antwerp, Belgium: Metro Press, 1995), 230–32.

135. Heyer, "From Special Needs to Equal Rights: Japanese Disability Law," University of Hawaii Asian-Pacific Law and Policy Journal 1 (2000): 6.

136. For an overview of disability policy among the affluent democracies, see Neil Lunt and Patricia Thornton, Employment Policies for Disabled People in Eighteen Countries: A Review(York, England: Social Policy Research Unit, 1997).

1. Deborah Hensler et al., Compensation for Accidental Injuries in the United States, 121. The accident rate for motor vehicles is calculated based on information in table 5.2. The Rand study's estimates are based on a massive household survey administered in 1988–89 covering injuries that were suffered in the previous year.

2. Ibid., 101. These figures are rough estimates derived from calculations from table 4.20 in the Rand study. It should be noted that these statistics include any kind of claim, not just a lawsuit filing. Auto accident claims, like most kinds of claims, typically do not result in litigation; most claims are settled after negotiation with an insurer.

Some corroborating evidence on the dominance of automobile accidents in tort litigation comes from the National Center for State Courts. An NCSC study of tort caseloads in ten state courts of general jurisdiction between 1984 and 1993 found that 60 percent of all cases arose from auto accidents. In another study, of eleven courts of general jurisdiction in 1993, auto cases were a somewhat smaller proportion of tort cases going to trial, 42 percent, but they were still the predominant type of tort (Brian J. Ostrom and Neal B. Kauder, Examining the Work of State Courts, 1993: A National Perspective from the Court Statistics Project[Williamsburg, Va.: National Center for State Courts, 1994], 23–24).

3. Perhaps not coincidentally, more than 90 percent of drivers in two-car accidents blamed someone else for the crash, according to the Rand study cited above. Thirty-seven percent of drivers managed to find someone else to blame in one-car accidents. And perhaps most incredibly, the few drivers who admitted driving illegally before the crash overwhelmingly blamed another party for their accidents. See Hensler et al., Compensation for Accidental Injuries in the United States, 159, table 6.7. Herbert Kritzer finds that Americans are more likely to blame someone else for an auto accident and more likely to claim compensation than English drivers. He suggests that this gap is due partly to economic incentives and partly to cultural differences between the two nations. See Kritzer, "Propensity to Sue," 400–427.

4. Of course, even in the traditional liability system, drivers can choose to insure themselves against accidents they cause or accidents in which the party at fault cannot fully compensate them for injuries suffered. Uninsured motorist coverage is an example of this kind of insurance.

It is also important to remember that the liability system is only one source of compensation for car accidents and not by any means the dominant one. The Rand Institute for Civil Justice study cited earlier estimated that, of $25.7 billion in compensation doled out to car accident victims, $9.8 billion came through the tort system. First-party accident insurance, employer benefits, health insurance, and various public programs accounted for the rest. See Hensler, 101, table 4.20, and 108, table 4.22.

5. In addition to using governmental social insurance, some of the advanced economies have also adopted no-fault accident systems, public and private, to handle tort liability claims. See generally Robert H. Joost, Automobile Insurance and No-Fault Law, 2d ed. (Deerfield, Ill.: Clark Boardman Callaghan, 1992 [updated through October 2001]), sec. 7:1–43; Pfennigstorf and Gifford, eds., A Comparative Study of Liability Law and Compensation Schemes.

6. The cost-shifting incentive is beside the point because privately run nofault systems don't require government expenditures. The insulation incentive is similarly irrelevant, because there is no need to wrest control of implementation away from wavering government bureaucrats. Lastly, the control incentive is irrelevant because this case takes place at the state level—the control incentive is applicable only when national-level actors wish to gain power over the actions of state and local agencies, as in the ADA case.

7. Appears is the correct word here since even in a no-fault system insurers can raise rates after accidents. Moreover, it should be remembered that, even in a traditional liability system, claims are typically paid by insurers, not individuals. Tom Baker finds in his study of Connecticut trial lawyers that among plaintiff attorneys there is a general norm against seeking "blood money"—the assets of individual defendants. Instead, plaintiffs usually content themselves with whatever they can obtain from the defendant's insurer (Baker, "Blood Money, New Money, and the Moral Economy of Tort Law in Action," Law and Society Review 35 [2001]: 275–319).

8. Jonathan Simon, "Driving Governmentality: Automobile Accidents, Insurance and the Challenge to Social Order in the Inter-War Years, 1919–1941," Connecticut Insurance Law Journal 4 (1997–98): 521.

9. Keeton and O'Connell, Basic Protection for the Traffic Victim.

10. Interview with Michael Dukakis, former governor of the Commonwealth of Massachusetts, Boston, August 9, 2000.

11. Joost, Automobile Insurance and No-Fault Law, sec. 57–22.

12. U.S. Department of Transportation, Compensating Auto Accident Victims: A Follow-Up Report on No-Fault Auto Insurance Experiences(Washington, D.C., 1985).

13. On the merits of auto no-fault, see the stunningly thorough review of the evidence in Don Dewees, David Duff, and Michael Trebilcock, Exploring the Domain of Accident Law: Taking the Facts Seriously(New York: Oxford University Press, 1996), 15–94. See also U.S. Department of Transportation, Compensating Auto Accident Victims; Carroll et al., No-Fault Approaches to Compensating People Injured in Auto Accidents; and Kenneth J. Meier and Robert M. LaFollette, "The Policy Impact of No-Fault Automobile Insurance," Policy Studies Review 6:3 (February 1987): 496–504.

14. Joost, Automobile Insurance and No-Fault Law, sec. 6:44–45.

15. States with a higher percentage of Republican politicians were more likely to adopt no-fault plans. See Meier and LaFollette, "The Policy Impact of No-Fault Auto Insurance," 503 n. 5.

16. A follow-up study of the Massachusetts no-fault system, the first in the nation, concluded that it had "a marked economic impact on the trial bar and on at least a portion of the lawyers in general practice." See Alan Widiss, "Massachusetts No-Fault Automobile Insurance: Its Impact on the Legal Profession," in No-Fault Automobile Insurance in Action: The Experiences in Massachusetts, Florida, Delaware and Michigan, ed. Alan Widiss et al. (Dobbs Ferry, N.Y.: Oceana Publications, 1977), 87–126.

17. Philip B. Heyman and Lance Liebman, "No Fault, No Fee: The Legal Profession and Federal No-Fault Automobile Insurance Legislation," in The Social Responsibilities of Lawyers: Case Studies, ed. Lance Liebman and Philip B. Heyman (New York: Foundation Press, 1988), 309–330.

18. Jeffrey O'Connell and Peter Spiro, "Whatever Happened to No-Fault?" Washington Monthly(April 1986), 35.

19. By one count twenty-eight no-fault bills had been introduced up to 1988; only six had been reported out of the chamber of origin and none had reached the governor. See William C. George, "No-Fault in California," San Diego Law Review 26 (1989): 1067.

20. Benjamin Zycher, "Automobile Insurance Regulation, Direct Democracy, and the Interests of Consumers," Regulation(summer 1990), 68.

21. James D. Richardson, "Willie Brown: The Play for Power," APF Reporter 16:1 (1996): 23–35.

22. Steven A. Clucas carefully analyzes the means by which Brown maintained his position in the assembly in The Speaker's Electoral Connection: Willie Brown and the California Assembly(Berkeley, Calif.: Institute of Governmental Studies Press, 1995).

23. California Fair Political Practices Commission, 1986 Primary Election Campaign Receipts and Expenditures(Sacramento, Calif.: October 1986), 2: F34.

24. Interview with Will Glennon, legislative analyst, California Trial Lawyers Association, Berkeley, Calif., August 6, 1993.

25. Interview with Bill Lockyer, state senator, Hayward, Calif., March 12, 1994.

26. Interview with Judith Bell, director, West Coast office of Consumers Union, San Francisco, Calif., August 10, 1993; interview with Ralph Nader, Washington, D.C., May 2, 1994.

27. Zycher, "Automobile Insurance Regulation," 68.

28. Testimony of John Garamendi, state of California insurance commissioner, California Senate-Assembly Conference Committee on SB 10, 1991 Fall Interim Hearings, in Automobile Insurance: Identification of Issues and Possible Solutions, summary of October 3, 1991, meeting (Sacramento, 1991), 1.

29. Testimony of Tom Wiebel, State of California Department of Motor Vehicles, in ibid., 3.

30. Interview with Dick Woodward, Woodward & McDowell, Burlingame, Calif., August 13, 1993.

31. Ibid.

32. Mervin Field, "Large Majority of Voters Believe Car Insurance Rates Much Too High," The California Poll, June 10, 1988.

33. Ibid.

34. Arthur Lupia, "Short Cuts versus Encyclopedias: Information and Voting Behavior in California Insurance Reform Elections," American Political Science Review 88 (1994): 63–76. Lupia's analysis is based on exit polls of Los Angeles–area voters. The one exception to the "the more you know them the less you favor them" rule was opinion on Prop. 106, where those who knew the lawyer position were, inexplicably, more likely to vote for it, though this relationship did not reach statistical significance.

35. The previous record was held by Proposition 51, the 1986 "deep pockets" initiative whose victory led CTLA to the bargaining that resulted in the Napkin Deal. The two sides of the Prop. 51 battle together spent nearly $11 million (California Fair Political Practices Commission, Historical Overview of Receipts and Expenditures By Ballot Measure Committees[Sacramento, Calif., April 1988]).

36. California Fair Political Practices Commission, 1988 Ballot Issues(Sacramento, Calif.), A8–A11.

37. Interview with Dan Dunmoyer, Personal Insurance Federation, Sacramento, Calif., September 24, 1993.

38. "The most obnoxious aspect of the insurance industry's no-fault initiative is that it's a Trojan horse to cloak what the initiative also calls for, the total prohibition of any regulation or public accountability of their operations" (Steven Miller, drafter of Proposition 100, quoted in Kenneth Reich, "Insurance Industry's No-Fault Auto Initiative Certified for Fall Election," Los Angeles Times, June 25, 1988, I-26). In the ballot pamphlet distributed to each voter, the anti104 statement (written by Rosenfield and Ralph Nader) began with this argument, devoting relatively little space to no-fault itself (California Secretary of State, California Ballot Pamphlet: General Election, November 8, 1988(Sacramento, Calif., August 18, 1988), 104–5.

39. Edward L. Lascher, Jr., "Commentary: Source Cues and Voting on California Insurance Reform Measures" (manuscript in author's possession); Ross E. Cheit and Jonathan D. Youngwood, "How Not to Reform Auto Insurance," The Public Interest 104 (1991): 71.

40. This result would not necessarily surprise those political scientists who study the financing of ballot initiatives. Their research indicates that there is little correlation between the level of spending in favor of an initiative and its success. John R. Owens and Larry L. Wade go so far as to claim that both spending for and spending against an initiative has at best only a modest impact. See Owens and Wade, "Campaign Spending on California Ballot Propositions, 1924–1984: Trends and Voting Effects," Western Political Quarterly 39 (1986): 675.

41. Interview with Patrick Johnston, California state senator, Sacramento, Calif., March 8, 1994.

42. Ibid.

43. Judith Bell, "Despite 103, Insurance Needs a Legislative Cure," Los Angeles Times, November 11, 1988, II-5.

44. Interview with Jeff Shelton, principal consultant to the California assembly Finance and Insurance Committee, Sacramento, Calif., August 2, 1993.

45. Jan Hoffman, "Life on Wheels: New No-Fault Insurance Effort Emerges in Capitol," Los Angeles Times(Orange County edition), February 9, 1989, IX-3.

46. U.S. Department of Labor, Bureau of Labor Statistics, 1995 Consumer Expenditure Survey(Washington, D.C.: Government Printing Office), cited in Joost, Automobile Insurance and No-Fault Law, sec. 8:18.

47. See testimony of Tom Wiebel, Department of Motor Vehicles, in Automobile Insurance: Identification of Issues and Possible Solutions, 3. Wiebel estimated that of 18 million registered drivers, between 25 and 29 percent were uninsured.

48. Interview with John Gamboa, executive director, Latino Issues Forum, San Francisco, Calif., July 30, 1993.

49. Interview with Robert Gnaizda, Public Advocates, San Francisco, Calif., March 14, 1994.

50. Gamboa, interview.

51. Ibid.

52. Gnaizda, interview.

53. Kenneth Reich, "Group Proposes No-Frills Auto Policy for $160," Los Angeles Times, March 23, 1989, 1–3.

54. Johnston, interview.

55. Kenneth Reich, "Push Starts for No-Frills, No-Fault Car Insurance, Los Angeles Times, May 24, 1989, 1–3.

56. Douglas Shuit, "Panel Approves Insurer-Backed No-Fault Bill," Los Angeles Times, April 19, 1989, 1–3.

57. Rick Kushman, "Brown Unveils Auto Insurance Plan," Sacramento Bee, May 23, 1989, A1.

58. Ibid.

59. Kenneth Reich, "Nader Draws Criticism by Consumers for No-Fault View," Los Angeles Times, May 28, 1989, 1–3.

60. Interviews with Gnaizda and Gamboa.

61. Kenneth Reich, "Nader Draws Criticism."

62. Nader, interview.

63. Daniel Weintraub, "Two Conflicting Car Insurance Bills Advance in Assembly," Los Angeles Times, June 22, 1989, 1–3.

64. "The Anything-But-No-Fault Bill," Sacramento Bee, September 6, 1989, B5.

65. "Take Another Stab at No-Fault," Los Angeles Times, September 24, 1989, V-4.

66. Interview with Billy Rutland, former chief consultant to assembly speaker Willie Brown, and Alan Zarenberg, former legislative secretary to Governor George Deukmajian, Sacramento, Calif., August 5, 1993. At the end of the 1990 session, Rutland and Zarenberg had worked out a compromise auto insurance bill that involved limiting lawyer fees in minor accidents. Both believe that they were close to getting their respective bosses to sign on to the bill, but the legislative session ran out before a deal could be made.

67. Daniel Weintraub, "Car Insurance Bill's Death Is Laid to Brown," Los Angeles Times, January 18, 1990, A3.

68. Dan Walters, "Insurance Bill ‘Speakerized,’" Sacramento Bee, January 18, 1990, A3.

69. Bill Ainsworth, "Lockyer's Legendary Temper: Political Tactic, or Curse? Insiders Say Senate Judiciary Chairman's Personality Undermines His Potential," Recorder(September 5, 1991), 1.

70. Lockyer, interview.

71. Ibid.

72. Vlae Kershner, "Wilson, Brown Square Off on Auto Insurance Bill," San Francisco Chronicle, March 28, 1991, A1.

73. Kenneth Reich, "Wilson Intensifies Push for No-Fault Insurance," Los Angeles Times, May 30, 1991, A1.

74. Consumers Union, letter to Senator Bill Lockyer, May 22, 1991 (copy in author's possession).

75. Bell, interview.

76. Dunmoyer, interview.

77. Ibid.

78. Interview with Tim Hart, legislative advocate, Association of California Insurance Companies, Sacramento, Calif., October 11, 1993. In one newspaper account the insurers were said to have spent $1.2 million (Kenneth Reich, "Brown Attacks Funding of No-Fault Ads," Los Angeles Times, May 11, 1991, A21).

79. Petris, like Lockyer, was a lawyer with some experience in plaintiff tortlitigation, though tort was only a small part of his practice (interview with Nicholas Petris, Oakland, Calif., January 26, 1996).

80. Johnston believed that the crucial vote was Art Torres's and that he would be unable to get either Marks, Watson, or Roberti to vote for no-fault (Johnston, interview).

81. Interview with Sal Russo, Russo Marsh & Associates, Sacramento, Calif., August 13, 1993.

82. Gamboa, interview.

83. Kenneth Reich, "Insurance Industry Targets Legislators," Los Angeles Times, May 10, 1991, A39.

84. Ibid.

85. Kenneth Reich, "Brown Attacks Funding of No-Fault Ads," A21.

86. Kenneth Reich, "Nader Alters Criticism of No-Fault," Los Angeles Times, May 21, 1991, B8.

87. Kenneth Reich, "Brown Attacks Funding of No-Fault Ads."

88. Daniel Weintraub, "No-Fault Bill Is Rejected by Senate Panel," Los Angeles Times, May 29, 1991, A3.

89. Bill Ainsworth, "When CTLA Talks, Legislators Listen," Recorder(June7, 1991), 1.

90. Tom Dressler, "Former Allies Now Enemies in Tort Battle," Los Angeles Daily Journal, March 15, 1996.

91. Dan Morain, "Ex Allies Now Split over Anti-Lawyer Measure," Los Angeles Times, March 4, 1996, A3.

92. G. Pascal Zachary, "California's Defeat of Legal, Insurance Overhaul Raises Questions about Tort Reform Nationwide," Wall Street Journal, March 28, 1996, A16.

93. Dan Bernstein, "Voters Decisively Reject No-Fault Auto Insurance," Sacramento Bee, March 27, 1996, A4.

94. This was the conclusion of A. G. Block, the editor of the California Journal, and University of California–San Diego political scientist Gary Jacobson. See Zachary, "California's Defeat of Legal, Insurance Overhaul Raises Questions."

95. This characterization was made by Max Boot, a crusading antilitigation Wall Street Journal columnist who sympathized with the goals of the initiative campaign (Max Boot, "Will Tort Reformers Miss a Golden (State) Opportunity?" Wall Street Journal, February 21, 1996, A13).

96. Kingdon, Agendas, Alternatives, and Public Policies.

97. Reynolds Holding, "No-Fault Insurance Rejected by Voters," San Francisco Chronicle, March 27, 1996, A3.

98. Edward Lascher concludes in his study that the outcome of no-fault struggles depends on how policy makers allocate responsibility for rising costs of automobile insurance. No-fault proponents must convince policy makers that the problem is with consumers and trial lawyers who abuse the tort system; no-fault opponents can effectively counter this by arguing that the problem is caused by "profiteering" insurers. Lascher's case study of no-fault in Rhode Island looks much like my study of California: plaintiff lawyers and Nader-backed consumer activists successfully stalled no-fault legislation, in part by persuading legislators of the insurer "profiteer" story and advocating regulation of insurers as an alternative. In Lascher's account of the battle in Pennsylvania, by contrast, no-fault opponents failed to advance the profiteer story, in part because the anti-no-fault coalition was unusual: it failed to include Naderite consumer groups but did include insurers! (Edward L. Lascher, Jr., The Politics of Automobile Insurance Reform: Ideas, Institutions and Public Policy in North America[Washington, D.C.: Georgetown University Press, 1999]).

99. Daniel Weintraub, "Road to No-Fault Plan Stops at Brown's Office," Los Angeles Times, May 30, 1991, A1.

100. This figure was computed by combining CTLA's contributions for the 1988 primary and general elections, the 1989 off-year election, and the 1990 primary election.

101. California Fair Political Practices Commission, 1988 Primary Contributions(Sacramento, Calif., 1988), B3.

102. Bill Ainsworth, "A Little Help for Its Friends; Trial Lawyers Group Gives Most to No-Fault Opponents," Recorder, August 19, 1991, 1.

103. The assembly member, Gerald Eaves, was part of the "Gang of Five," a group of Democrats who rebelled against Brown's leadership. CTLA contributed $109,982 to Eaves's 1988 primary opponent, Joe Baca, who nonetheless lost. The Gang of Five rebellion was quashed by Brown, who stripped all five of their committee assignments. After two years, the five made peace with Brown. One of the five was Steve Peace, the coauthor of the Johnston bill who abstained on the January 1990 Ways and Means vote, dooming the bill in the assembly.

104. Bill Ainsworth, "Lockyer's Legendary Temper," 1.

105. Lockyer, interview.

106. Weintraub, "Road to No-Fault Plan Stops at Brown's Office," A1.

107. Glennon, interview.

108. Hensler et al., Compensation for Accidental Injuries in the United States, 101. The estimate is derived from table 4.20.

109. See Widiss, "Massachusetts No-Fault Automobile Insurance," 87–126.

110. Stephen Green, ed., California Political Almanac, 1991–1992, 2d ed. (Sacramento, Calif.: California Journal Press, 1991). Four seats were listed as vacant and thus were excluded. I counted as lawyers all those who were listed as having received a J.D. Edward Lascher's study of no-fault politics in Pennsylvania and Rhode Island comes to similarly ambiguous conclusions about the influence of lawyer legislators. See Lascher, The Politics of Automobile Insurance Reform, 83–85.

111. Joost, Automobile Insurance and No-Fault Law, sec. 7:5. Of course, if there are disputes between claimant and insurer the matter will end up being resolved by a public agency, either a court (auto insurance) or an administrative tribunal (workers’ compensation). In addition, twenty states have a public workers’ compensation fund. In the United States 20 percent of firms in workers’ compensation are insured through a state-run fund (American Law Institute, Enterprise Responsibility for Personal Injury, 1:121).

112. Takao Tanase, "The Management of Disputes: Automobile Accident Compensation in Japan," Law and Society Review 24 (1990): 641.

113. Hensler et al., Compensation for Accidental Injuries in the United States, 101, table 4.20; 108, table 4.22.

114. Pfennigstorf and Gifford, eds., A Comparative Study of Liability Law and Compensation Schemes, 158–159.

1. Quoted in testimony of Jeffrey Schwartz, U.S. House Subcommittee on Health and the Environment, Vaccine Injury Compensation: Hearings on H.R. 5810, 98th Cong., 2d sess., September 10, 1984, 81.

2. Estimates of the number of children seriously injured by reactions to vaccines are a matter of dispute. A study commissioned by the Department of Health and Human Services estimated that between 143 and 325 children each year suffered injuries ranging from acute brain swelling to death (U.S. Office of Technology Assessment, Compensation for Vaccine-Related Injuries: A Technical Memorandum[Washington, D.C.: Government Printing Office, 1980], 60). A report by the American Medical Association, drawing on several published studies, estimated that on average sixty-three children suffer permanent brain damage or death each year from vaccines (American Medical Association Board of Trustees, "Report of Ad Hoc Commission on Vaccine Injury Compensation," Connecticut Medicine[March 1985], 172.) However, Barbara Loe Fisher, a parent of a DPTinjured child, estimated, based on her own analysis of published research, that eleven thousand infants each year had lasting neurological symptoms and nearly one thousand died from reactions to DPT alone (Barbara Loe Fisher and Harris L. Coulter, DPT: A Shot in the Dark[San Diego: Harcourt Brace Jovanovich, 1985]).

3. Interview with Andrew Dodd (plaintiff lawyer in vaccine litigation), Torrance, Calif., July 7, 1994.

4. Comment k of section 402A of the second Restatement of Torts says that the seller of unavoidably dangerous products such as drugs and vaccines "is not to be held to strict liability for unfortunate consequences attending their use merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk" (American Law Institute, Restatement of the Law, Second, Torts[St. Paul, Minn.: ALI, 1965], sec. 402A).

5. A study by the Institute of Medicine of the National Academy of Sciences found only eight reported cases in which manufacturers were found liable for defective vaccines given to humans (Institute of Medicine, Division of Health Promotion and Disease Prevention, Vaccine Supply and Innovation[Washington, D.C.: National Academy Press, 1985], 86).

6. In Reyes v. Wyeth Laboratories(498 F. 2d 1264 [5th Cir. 1974]) the court upheld a verdict in the case of a young Texas girl vaccinated with the Sabin polio vaccine. The court accepted the argument that Wyeth had failed to warn, even though the vaccines had been delivered to a Texas state clinic with a package insert warning of risks. Commentators have criticized the decision for not explaining how Wyeth was supposed to warn all recipients of its vaccines without relying on intermediaries such as clinics. Further, critics of the Reyes decision point out that, if the plaintiff had been warned of the dangers of the Sabin polio vaccine, he would have no alternative but to take it since the Salk polio vaccine was unavailable (Marc A. Franklin and Joseph Mais, Jr., "Tort Law and Mass Immunization Programs: Lessons from the Polio and Flu Epidemics," California Law Review 65 [1977]: 754).

The logic of the Reyes decision can probably best be explained by the court's discussion of the larger issues in vaccine compensation:

"Until Americans have a comprehensive scheme of social insurance, courts must resolve by a balancing process the head-on collision between the need for adequate recovery and viable enterprise."… Statistically predictable as are these rare cases of vaccine-induced polio, a strong argument can be advanced that the loss ought not lie where it falls (on the victim), but should be borne by the manufacturer as a foreseeable cost of doing business, and passed on to the public in the form of price increases to his customers.

(Reyes v. Wyeth, 1294, quoting Helene Curtis Industries v. Pruitt, 385 F. 2d 862 [1968]).

7. An exception to this pattern of minimal compensation is the swine flu vaccine program. The U.S. government accepted liability for all those who developed a severe illness called Guillain-Barre syndrome from the vaccine, so that a large number were compensated. Several cases were contested on the issue of causation, however. See U.S. Office of Technology Assessment, Compensation for Vaccine-Related Injuries, 93–104.

8. Edward W. Kitch, "Vaccines and Product Liability: A Case of Contagious Litigation," Regulation(May/June 1985), 13.

9. Toner v. Lederle, 828 F. 2d 510 (1987). The jury concluded that another version of DPT, which had been tested but never licensed, would have been safer.

10. The verdict was later reversed by the Kansas Supreme Court in Johnson v. American Cyanamid Co., 718 P. 2d 1318 (1986).

11. See generally Peter William Huber, Liability: The Legal Revolution and Its Consequences(New York: Basic Books, 1988); and Edward W. Kitch, "Vaccines and Product Liability."

12. Michael J. Conlon, United Press International, Washington News, April 19, 1982.

13. Some observers attributed the report and a Nightline program the same year to the rise in filings of personal injury lawsuits in the early 1980s (Francesca Lunzero, "Scared Shotless," Forbes[November 18, 1985], 256).

14. In DPT's statement of purpose the first six goals listed involve either further study of the DPT vaccine or promotion of debate about the dangers of the pertussis vaccine in particular. The final two goals advocate the adoption of a compensation program and the development of treatment centers for vaccineinjured children (Testimony of Jeffrey Schwartz, Senate Labor and Human Resources Committee, Task Force Report on Pertussis: Hearing before the Committee on Labor and Human Resources, 98th Cong., 1st sess., July 22, 1983, 44, 52).

15. Testimony of Martin H. Smith, American Academy of Pediatrics, ibid., 60.

16. The nations were Britain, France, West Germany, Switzerland, Denmark, and Japan. The California program provided up to $25,000 in medical benefits. See Wendy K. Mariner, "Compensation Programs for Vaccine-Related Injury Abroad: A Comparative Analysis," Saint Louis University Law Journal 31 (1987): 599–654.

17. Nonet, Administrative Justice.

18. New Zealand allows lawsuits for "exemplary damages" beyond the economic compensation victims get from the state fund and for mental injuries that are unconnected to a physical injury. In 1998 the government partially privatized workplace accident compensation, but this change was reversed in 2000 (Stephen Todd, "Privatization of Accident Compensation: Policy and Politics in New Zealand," Washburn Law Journal 39 [2000]: 404).

19. Interview with Stephen Lawton, representative, American Academy of Pediatrics, Washington D.C., May 25, 1994. Testimony of Martin H. Smith, American Academy of Pediatrics, Senate Labor and Human Resources Committee, Task Force Report on Pertussis, 63.

20. Interview with Jeffrey Schwartz, Washington D.C., June 17, 1994; Lawton, interview.

21. Fisher and Coulter, A Shot in the Dark, 371–377.

22. Barbara Loe Fisher, editorial, Dissatisfied Parents Together News 1:1 (1983): 17.

23. Testimony of Jeffrey Schwartz, Senate Labor and Human Resources Committee, Task Force Report on Pertussis, 57.

24. Testimony of Robert Kaufman, Advocates for Safe Vaccines, ibid., 94.

25. Testimony of Jeffrey Schwartz, ibid., 50–51, 56–57; Schwartz, interview.

26. Lawton, interview.

27. National Childhood Vaccine-Injury Compensation Act, 98th Cong., 1st sess., S. 2117, Cong. Rec., 129, pt. 24 (1983): 33796–33804.

28. The state health departments of Michigan and Massachusetts also manufactured DPT, primarily for use within their states.

29. Testimony of James Mason, director, Division of Immunization of the Center for Prevention Services, Centers for Disease Control, Public Health Service, House Subcommittee on Health and the Environment, Vaccine Injury Compensation, December 19, 1984, 268.

30. Statement of Robert B. Johnson, president, Lederle Laboratories Division, American Cyanamid, ibid., September 10, 1984, 235.

31. Lunzer, "Scared Shotless," 256.

32. Waxman concluded the hearing by noting that what had appeared to be a shortage one day had turned out not to be a shortage the next. Waxman pledged not to get into a game of "chicken" with manufacturers and get stampeded into legislation that was overly generous to them (House Subcommittee on Health and the Environment, Vaccine Injury Compensation, December 19, 1984, 349).

33. Testimony of Jeffrey Schwartz, ibid., 347.

34. "Dwindling Supply of Vaccines Threat to Public Health," Chicago Tribune, August 4, 1985, 15.

35. Sally Squires, "Pediatricians Warn of Vaccine ‘Crisis,’" Washington Post, April 23, 1986, 7.

36. Testimony of Robert B. Johnson, House Subcommittee on Health and the Environment, Vaccine Injury Compensation: Hearings before the Subcommittee on Health and the Environment, 99th Cong., 2d sess., July 25, 1986, 233.

37. National Childhood Vaccine Injury Act, 99th Cong., 1st sess., S. 827, Cong. Rec., 131, pt. 6 (1985): 7031–7032.

38. Senate Labor and Human Resources Committee, National Childhood Vaccine Injury Compensation Act: Hearing on S. 2117, 98th Cong., 2d sess., May 3, 1984; and Senate Labor and Human Resources Committee, National Childhood Vaccine Injury Compensation Act of 1985: Hearing on S. 827, 99th Cong., 1st sess., July 18, 1985.

39. Testimony of Robert L. Willmore, deputy assistant attorney general, Civil Division (answers to written questions), ibid., 228.

40. Statement of Edward N. Brandt, Jr., assistant secretary for health, Senate Labor and Human Resources Committee, Hearing on S. 2117, May 3, 1984, 16–18.

41. Robert A. McConnell, assistant attorney general, Office of Legislative and Intergovernmental Affairs, to Orrin G. Hatch, June 12, 1984, reproduced in Senate Labor and Human Resources Committee, Hearing on S. 2117, 292–293.

42. Council on Human Resources, Working Group on Vaccine Supply and Liability,(Washington, D.C., 1985).

43. Report of Ad Hoc Commission on Vaccine Injury Compensation, reprinted in Connecticut Medicine(March 1985), 172–176.

44. The quote comes from Madigan's aide on the subcommittee, Eddie Allen (interview with Eddie Allen, Washington, D.C., May 18, 1995).

45. Marjorie Sun, "Three Plans Proposed to Avert Vaccine Shortage," Science(April 19, 1985), 308.

46. "President Reagan Signs Vaccine Injury Compensation and Safety Bill into Law," DPT News 3 (spring 1987): 13.

47. Testimony of John E. Lyons, president, Merck Sharp & Dohme, Senate Labor and Human Resources Committee, Hearing on S. 2117, May 3, 1984, 276–278.

48. Testimony of John E. Lyons, executive vice president, Merck & Co., Inc., House Subcommittee on Health and the Environment, Vaccine Injury Compensation, July 25, 1986, 222–230.

49. Testimony of Jeffrey Schwartz, president, Dissatisfied Parents Together, ibid., 186–195.

50. Julie Rovner, "House Passes Vaccine Injury Compensation Bill," Congressional Quarterly Weekly Report, October 18, 1986, 2626.

51. Interview with Nancy Taylor, aide to Senator Orrin Hatch, Washington, D.C., May 18, 1995; Allen, interview.

52. Taylor, interview.

53. Barbara J. Culliton, "Omnibus Health Bill," Science(December 12, 1986), 1313.

54. J. Edward Fox, assistant secretary, State Department, to James C. Miller, III, director, Office of Management and Budget, October 24, 1986; Robert M. Kimmitt, general counsel, Treasury Department, to Miller, October 30, 1986; Douglas Riggs, general counsel, Commerce Department, to Miller, November 6, 1986; and Peter Meyers, deputy secretary, Agriculture Department, to Miller, October 27, 1986, Clayton Yeutter, U.S. trade representative, to Miller, October 31, 1986, all in HE A11 subject file, Ronald Reagan National Library, Simi Valley, Calif.

55. Riggs to Miller; Kimmitt to Miller; Mari Maseng, director, Public Liaison, to Donald T. Regan, chief of staff, November 12, 1986. A memo from Alfred Kingon, cabinet secretary and assistant to the president, to Donald Regan, the president's chief of staff, summarized the conclusion of a meeting of White House and departmental officials: the Health and Human Services representative recommended signing the law, the Justice Department and OMB representatives recommended a veto, and the labor secretary, William Brock, advised that the president should either "sign before election day or, after that, ‘flip a coin’" (Alfred H. Kingon to Donald T. Regan, October 24, 1986, HE A11 subject file, Ronald Reagan National Library).

56. David L. Chew, assistant to the president, to Ronald Reagan, November 14, 1986, HE A11 subject file, Ronald Reagan National Library.

57. John R. Bolton, assistant attorney general, to James C. Miller, III, director, OMB, October 31, 1986, HE A11 subject file, Ronald Reagan National Library.

58. Peter J. Wallison to Donald T. Regan, November 3, 1986, HE A11 subject file, Ronald Reagan National Library.

59. Kingon to Regan, October 24, 1986.

60. Memo from Owen to Miller, October 28, 1986, HE A11 subject file, Ronald Reagan National Library.

61. Joseph Wright to Ronald Reagan, memo on Enrolled Bill S. 1744, November 13, 1986, HE A11 subject file, Ronald Reagan National Library.

62. In the first version of his memo Wright noted that in addition to the vaccine program, several other provisions of the bill, including the medical

63. "Statement on Signing S. 1744 into Law, November 14, 1986," Public Papers of the Presidents of the United States: Ronald Reagan, 1981–1989(Washington, D.C.: Government Printing Office, 1988), 1565–1366.

64. Ibid., 1565.

65. Testimony of Robert B. Johnson, president, Lederle Laboratories Division, American Cyanamid Company, House Subcommittee on Select Revenue Measures, Funding of the Childhood Vaccine Program: Hearing before the Subcommittee on Select Revenue Measures, 100th Cong., 1st sess., March 5, 1987, 82.

66. Testimony of Dennis E. Ross, tax legislative counsel, Department of the Treasury, ibid., 19–20, 31.

67. Julie Rovner, "Vaccine Compensation Plan Cut Back by Two House Panels," Congressional Quarterly Weekly Report, October 17, 1987, 2510.

68. Ibid. Lederle had already dropped its price for DPT from the 1986 high of $11.40 to $8.92 in May of 1987. Connaught, the other maker of DPT, had followed suit. "DPT Prices Drop," DPT News, Summer/Fall 1987, 4.

69. "Vaccine Compensation," Congressional Quarterly Almanac(Washington, D.C.: Congressional Quarterly Press, 1987), 537.

70. Ibid.

71. The total awarded, $1.323 billion, includes lawyer's fees paid to 1,698 unsuccessful claimants (U.S. Department of Health and Human Services, Health Resources and Services Administration, Vaccine Injury Compensation Program, Monthly Statistics Report(February 28, 2002), available at <http://www.hrsa.gov/osp/vicp/montly.htm>, accessed April 5, 2002).

72. Interviews with Thomas Balbier, administrator, Vaccine Injury Compensation Program, Washington, D.C., May 13, 1994; and Gary Golkiewicz, Office of Special Masters, U.S. Claims Court, Arlington, Virg., May 26, 1994.

73. The appeal number is taken from Molly Treadway Johnson, Carol E. Drew, and Dean P. Miletich, Use of Expert Testimony, Specialized Decision Makers, and Case-Management Innovations in the National Vaccine Injury Compensation Program(Washington, D.C.: Federal Judicial Center, 1998), 23. This number was compared to the overall adjudications in the program's Monthly Statistics Report.

74. U.S. Department of Health and Human Services, Office of Special Programs, Vaccine Injury Compensation Program, "Commonly Asked Questions about the National Vaccine Injury Compensation Program—Revised 01/2002," available at <http://www.hrsa.gov/osp/vicp/quanda.htm>, accessed April 5, 2002.

75. Success rate calculated from Table II, Vaccine Injury Compensation Program,

76. Vaccine Injury Compensation Program, "Commonly Asked Questions."

77. Denis J. Hauptly and Mary Mason, "The National Childhood Vaccine Injury Act," Federal Bar News and Journal 37:8 (1990): 455.

78. United States General Accounting Office, Vaccine Injury Compensation: Program Challenged to Settle Claims Quickly and Easily(Washington D.C.: December 1999), 8, fig. 1.

79. House Subcommittee on Criminal Justice, Drug Policy, and Human Resources, Compensating Vaccine Injuries: Are Reforms Needed? 106th Cong., 1st sess., September 28, 1999, Committee Print; Arthur Allen, "Shots in the Dark," Washington Post Magazine(August 30, 1998), W10; and Elizabeth C. Scott, "The National Childhood Vaccine Injury Act Turns Fifteen," Food and Drug Law Journal 56 (2001): 351.

80. Derry Ridgway, "No-Fault Vaccine Insurance: Lessons from the National Vaccine Injury Compensation Program," Journal of Health Politics, Policy and Law 24 (1999): 70.

81. Terran v. HHS, 195 F. 3d 1302 (1999), and O'Connell v. HHS, 217 F. 3d 857 (1999).

82. U.S. General Accounting Office, Vaccine Injury Compensation, 12, table 4.

83. Ibid., 14, table 6.

84. Oddly enough, program statistics do not show the success rate of complainants dropping after 1995, the year in which residual seizure disorder was removed from the table. From 1988 to 1995 postprogram claimants prevailed in 41 percent of cases; from 1996 to 2001 they won 44 percent of the time. The record of preprogram claimants actually improved markedly, from 21 percent to 40 percent (calculated from table II in Vaccine Injury Compensation Program, Monthly Statistics Report[February 28, 2002]).

85. House Committee on Government Reform, The Vaccine Injury Compensation Program: Addressing Needs and Improving Practices, 106th Cong., 2d sess., 2000, H. Rept. 977, 2.

86. Ibid., 12.

87. Testimony of Cliff Shoemaker, attorney, Shoemaker and Horn, House Subcommittee on Criminal Justice, Drug Policy, and Human Resources, Compensating Vaccine Injuries, 89–90, 95–96.

88. House Committee on Government Reform, The Vaccine Injury Compensation Program, 11–14.

89. U.S. Department of Health and Human Services, Office of Special Programs, "Background Information on VICP," available at <http://www.hrsa.gov/osp/vicp/abdvic.htm>, accessed April 5, 2002.

90. Alice Dembner, "Two Mass[achusetts] Families Sue Vaccine Makers," Boston Globe, September 1, 2001, A1.

91. Elyse Tanouye, "The Vaccine Business Gets a Shot in the Arm," Wall Street Journal, February 25, 1998, B1.

92. Interview with Alan A. Parker, senior director, Public Affairs, Association of Trial Lawyers of America, Vienna, Virg., July 12, 1994.

93. Interview with Robert D. Evans, director; Lillian Gaskin, senior legislative counsel; Irene Emselmen, senior legislative counsel; Kevin Driscoll, senior legislative counsel; and Gary Sellers, legislative counsel, ABA Governmental Affairs Office, Washington D.C., April 28, 1994.

94. Interview with Andrew Dodd, Advocates for a Safer Vaccine, Torrance, Calif., July 7, 1994.

95. Testimony of Robert B. Johnson, House Subcommittee on Health and the Environment, Vaccine Injury Compensation, September 10, 1984, 237.

96. Geoffrey Evans finds vaccine compensation programs operating in Germany, France, Italy, Japan, Switzerland, Norway, Denmark, Sweden, New Zealand, the United Kingdom, Quebec, and Taiwan. In these nations claims for compensation are decided by a health or social welfare agency or by an expert panel of doctors, with the exception of France, where an administrative tribunal may be used, and Sweden, where the program is administered by private insurers. The compensation programs are funded through general tax revenues, except in Sweden and Taiwan, which finance their programs through fees paid by manufacturers. See Geoffrey Evans, "Vaccine Injury Compensation Programs Worldwide," Vaccine 17 (1999): S26, table 1.

1. October 11, 1992, presidential debate, Transcript no. 2–6 (Cable News Network, 1992), available from Lexis-Nexis Academic Universe at <http://www.lexis-nexis.com>, accessed April 9, 2002.

2. These sorry tales of litigiousness are told, respectively, in Zachary R. Dowdy, "Litigation Becoming a Pastime, Some Say," Boston Globe, March 8, 1996, 27; Edward Felsenthal, "Weekend Warriors Find a New Arena: Court," Wall Street Journal, June 23, 1995, B1; and Lisa Miller, "Clergy Shy Away from Counseling; Surge in Lawsuits Is Scaring Them Off," Houston Chronicle, February 14, 1998, Religion Section, 1.

3. Terry M. Moe, "Political Institutions: The Neglected Side of the Story," Journal of Law, Economics, and Organization 6 (1990): 213–253; "The Politics of Bureaucratic Structure," in Can the Government Govern? ed. John E. Chubb and Paul E. Peterson (Washington, D.C.: Brookings Institution, 1989), 267–329; and "The Politics of Structural Choice: Toward a Theory of Public Bureaucracy," in Organization Theory: From Chester Barnard to the Present and Beyond, ed. Oliver E. Williamson (New York: Oxford University Press, 1995).

4. The analysis here differs in crucial respects from that of Morris Fiorina in his writing on the court-versus-agency delegation decision (Fiorina, "Legislative Choice of Regulatory Forms: Legal Process or Administrative Process?" Public Choice 39 [1982]: 33–66; and "Group Concentration and the Delegation of Legislative Authority," in Regulatory Policy and the Social Sciences, ed. Roger G. Noll [Berkeley and Los Angeles: University of California Press, 1985], 175–199).

First, Fiorina assumes that courts will more predictably interpret statutes than agencies. I know of no evidence for this assumption and it does not enter into my analysis. Second, Fiorina assumes that delegation to agencies shifts blame away from legislators more than delegation to courts. Again, in the policy arenas I have

Finally, and most importantly, Fiorina is considering the decision to delegate solely from the perspective of the legislator. I consider the decision from the position of all "activists"—all those who seek public action on a social problem, in particular interest groups, policy entrepreneurs in various positions, and policy makers in the legislative and executive branches. Lumping the incentives of all these actors together, of course, greatly oversimplifies the complexity of delegation politics. For one analysis of how incentives differ between presidents and legislators, see David E. Lewis, "The Presidential Advantage in the Design of Bureaucratic Agencies" (paper presented at the American Political Science Association Annual Meeting, Boston, Mass., September 1998).

5. Terry M. Moe, "Political Institutions," 239–242.

6. Mirjan R. Damaska, The Faces of Justice and State Authority(New Haven, Conn.: Yale University Press, 1986), 16–46.

7. Herbert Jacob et al., Courts, Law, and Politics in Comparative Perspective(New Haven, Conn.: Yale University Press, 1996), 19.

8. This point was suggested to me by R. Shep Melnick, who makes a similar argument in his book Between the Lines(Washington, D.C.: Brookings Institution, 1994), 177–178.

9. For an account of the various techniques Congress has at its disposal for disciplining bureaucracies, see William T. Gormley, Jr., Taming the Bureaucracy: Muscles, Prayers and Other Strategies(Princeton, N.J.: Princeton University Press, 1989).

10. Martin v. PGA, 121 S. Ct. 1879 (2001).

11. William N. Eskridge, Jr.'s study of congressional attempts to override statutory judicial decisions found that only 7 percent of Supreme Court statutory decisions were overridden, though more than a third were at least scrutinized by a congressional committee (Eskridge, "Overriding Supreme Court Statutory Interpretation Decisions," Yale Law Journal 101:2 [1991]: 350, table VIII). This finding, combined with Eskridge's modeling of court-Congress-president interactions, demonstrated, he concludes, "the significant power of the Court to read its own raw preferences into statutes without congressional override." Moreover, Eskridge finds "an unimpressive knowledge of and response to the far more numerous lower federal court statutory decisions" (416). Congress, of course, can't overrule decisions it never learns about.

12. Douglas Arnold, The Logic of Congressional Action(New Haven, Conn.: Yale University Press, 1990), 47.

13. This point was suggested to me by Martin Shapiro.

14. Melnick, Between the Lines, 221–229.

15. Steven M. Teles tells this story and many others in his penetrating political history of Aid to Families with Dependent Children, Whose Welfare? AFDC and Elite Politics(Lawrence: University Press of Kansas, 1996).

16. My analysis concerns the decision to lodge implementation power in the courts as an adjunct to, or as a substitute for, agency implementation. The choice

17. See Frank R. Baumgartner and Bryan D. Jones, Agendas and Instability in American Politics(Chicago: University of Chicago Press, 1993), 6–9.

18. Ibid., 68.

19. Melnick notes that the traditional veterans’ affairs policy monopoly was challenged by the Vietnam Veterans of America, who sought judicial review because they believed courts would prove more sympathetic to their claims about Agent Orange than the Veterans Administration (Melnick, Between the Lines, 268).

20. Epstein and O'Halloran's Delegating Powers provides some support for the existence of the insulation incentive, though this support is mostly indirect since the authors focus on delegation to bureaucratic agencies rather than courts. The study finds that in periods of divided government, Congress is more apt to delegate to state agencies, local authorities, and courts rather than to the executive branch. (Unfortunately, the authors do not provide separate analysis of delegation to courts but instead lump them together with states and localities. See 156–157.) The authors also find that Congress generally delegates less and grants less discretion to implementing authorities during periods of divided government (David Epstein and Sharyn O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making under Separate Powers[New York: Cambridge University Press, 1999]).

21. Sven Steinmo, Taxation and Democracy, 196.

22. A 1974 survey, for example, found Americans less likely than citizens of Britain, the Netherlands, or West Germany to hold government responsible for education, health care, housing, old age security, and unemployment (Arnold Heidenheimer, Hugh Heclo, and Carolyn Teich Adams, Comparative Public Policy: The Politics of Social Choice in America, 3rd ed. [New York: St. Martin's Press, 1990], 354). See also Herbert McClosky and John Zaller, The American Ethos: Public Attitudes toward Capitalism and Democracy(New York: Twentieth Century Fund, 1984); and Seymour Martin Lipset, American Exceptionalism: A Double-Edged Sword(New York: Norton, 1996).

23. An unfunded-mandates point of order can be defeated by a majority of the membership. Moreover, the unfunded-mandates law excludes many actions by the federal government, including those enforcing constitutional rights and preventing discrimination, two main uses of litigious policies aimed at states and localities (Paul I. Posner, The Politics of Unfunded Mandates[Washington, D.C.: Georgetown University Press, 1998], 175).

24. City of Boerne v. Flores, 521 U.S. 507 (1997).

25. See, respectively, Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Alden v. Maine, 527 U.S. 706 (1999); and Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).

26. University of Alabama v. Garrett, 121 S. Ct. 955 (2001).

27. C. Neal Tate and Torbjorn Vallinder, eds., The Global Expansion of Judicial Power.

28. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization.

29. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change?

30. Glendon, Rights Talk: The Impoverishment of Political Discourse. See also Glendon, Abortion and Divorce in Western Law.

31. Ibid., 22–25.

32. On the failings of the welfare rights movement, see Teles, Whose Welfare? 85–118.

33. Mary Ann Glendon, "Rights in Twentieth Century Constitutions," in Rights and the Common Good: The Communitarian Perspective, ed. Amitai Etzioni (New York: St. Martin's Press, 1995), 27–36.

34. Kelman quotes Edmund Burke's famous remark about this dark side of liberal philosophers: "In the groves of their academy… at the end of every vista you see nothing but the gallows" (Kelman, Regulating America, Regulating Sweden: A Comparative Study of Occupational Safety and Health Policy[Cambridge, Mass.: MIT Press, 1981], 198).

35. James Lynch, "Crime in International Perspective," in James Q. Wilson and Joan Petersilia, Crime(San Francisco: Institute for Contemporary Studies Press, 1995), 11–38. The Bureau of Justice Statistics reports that on June 30, 2001, there were 472 prison inmates per 100,000 U.S. residents, up from 292 at the end of 1990 (Bureau of Justice Statistics, Prison Statistics, available at <http://www.ojp.usdoj.gov/bjs/prisons.htm>, accessed April 9, 2002).

36. For a classic argument against the belief that courts even the odds between the powerful and the lowly, see Marc Galanter, "Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change," Law and Society Review 9 (1974): 95. See also Gillian K. Hadfield, "The Price of Law: How the Market for Lawyers Distorts the Justice System," Michigan Law Review 98 (2000): 953.

37. A study of Texas lawyer interest groups found a pattern very similar to the one found in the California no-fault case, with the plaintiff lawyer organization far more mobilized than either the bar association or the civil defense lawyer group. See William De Soto, "Texas Lawyers and the Mobilization of Interests" (paper presented at the American Political Science Association Annual Meeting, Washington, D.C., September 2–5, 1993).

38. The few studies that move beyond the focus on intra–bar association politics are De Soto, "Texas Lawyers and the Mobilization of Interests," which includes a survey of political activity of plaintiff and defense lawyers; Richard A. Watson and Rondal G. Downing, The Politics of the Bench and the Bar(New York: John Wiley, 1969), which describes conflicts between proplaintiff and prodefendant lawyer groups over judicial selection in Missouri; Theodore Schneyer, "Professionalism as Politics: The Making of a Modern Legal Ethics Code," in Lawyer's Ideals, Lawyer's Practices, ed. Robert L. Nelson, David M. Trubek, and Rayman L. Solomon (Ithaca, N.Y.: Cornell University Press, 1992), 95–143, which details the conflicts between the ABA and ATLA over a code of professionalism; and Philip Heymann and Lance Liebman, The Social Responsibilities of Lawyers(Ithaca, N.Y.: Foundation Press, 1988), 309–335, which discusses how both ABA and ATLA mobilized to beat a national no-fault auto insurance bill.

39. On the formation of a coalition in favor of workers’ compensation, see Fishback and Kantor, A Prelude to the Welfare State: The Origins of Workers’ Compensation, 88–93, 120–147.

40. Ed Gillespie and Bob Schellhas, eds., Contract With America(New York: Times Books, 1994), 37–64, 143–155.

41. To determine whether the main matter in dispute involved a litigious policy, I used the roll-call vote descriptions provided by the Congressional Quarterly Almanac for 1995 and 1996 (Washington, D.C.: Congressional Quarterly Press).

42. The measure employed is the first-dimension Poole-Rosenthal W-nominate scores for the 104th Congress. Poole-Rosenthal scores are widely used in congressional research, and I, like many others, owe a debt of thanks to Professors Poole and Rosenthal for developing them.

43.

I also ran separate regressions with only Democrats and only Republicans and got similar results for both "degree" and "lawyer" in these equations.

Several additional variables involving characteristics of the representative's district (median household income, percentage rural households, and presidential vote in the 1996 election) were dropped from the final equation. They did not significantly affect the variables of interest, "degree" and "lawyer." Finally, I ran the regression with the Huber-White estimator for standard errors, which doesn't require the assumption of a normally distributed dependent variable. This too had no effect on the findings I report.

44. Richard L. Hall and Frank W. Wayman, "Buying Time: Moneyed Interests and the Mobilization of Bias in Congressional Committees," American Political Science Review 84 (1990): 797–820.

45. See Heinz Eulau and John D. Sprague, Lawyers in Politics: A Study in Professional Convergence(Indianapolis: Bobbs-Merrill, 1964); David R. Derge, "The Lawyer as Decision-Maker in the American State Legislature," Journal of Politics 21 (1959): 408–433; Derge, "The Lawyer in the Indiana General Assembly," Midwest Journal of Political Science 6 (1962): 19–53; and Justin J. Green et

46. Barry Meier, "Cigarette Makers in a $368 Billion Accord to Curb Lawsuits and Curtail Marketing," New York Times, June 21, 1997, A1.

47. Michael K. Frisby, "Tobacco Officials Balk at Changes Proposed to Beef Up Settlement," Wall Street Journal, August 15, 1997, B6. For an account of both this and the later, successful state attorneys general–led tobacco settlement, see Martha A. Derthick, Up in Smoke: From Legislation to Litigation in Tobacco Politics(Washington, D.C.: Congressional Quarterly Press, 2002).

48. Stephen Labaton, "Asbestos Cases in for Overhaul by Lawmakers," New York Times, June 28, 1999, A1.

49. Diana B. Henriques and David Barstow, "A Nation Challenged: Victims’ Compensation: Fund for Victims’ Families Already Proves Sore Point," New York Times, October 1, 2001, A1.

50. Pace and Kakalik, Costs and Compensation Paid in Tort Litigation.

51. Galanter, "News From Nowhere"; Daniels and Martin, "The Question of Jury Competence," 309.

52. See, for example, Saks, "Do We Really Know Anything about the Behavior of the Tort Litigation System—and Why Not?" Although Saks spends more than one hundred pages reviewing a huge number of studies, his main point is that we lack good data about tort litigation, so that any reform will be the product of "guesswork" (1288).

53. For a classic study of how an individualism of "self-sufficiency and personal responsibility" in traditional rural communities led residents to "lump it" when they were injured, see David M. Engel's "The Oven Bird's Song," 551.

54. Robert A. Kagan, "The Routinization of Debt Collection: An Essay on Social Change and Conflict in the Courts," Law and Society Review 18 (1984): 323–83.

55. Lawrence M. Friedman, Total Justice(Boston: Beacon Press, 1987).

56. Kagan, "Adversarial Legalism and American Government," 394.

57. Ibid., 374. Jerry L. Mashaw makes a similar distinction between "bureaucratic rationality" and "moral judgment" in Bureaucratic Justice(New Haven, Conn.: Yale University Press, 1983), 25–34.

58. Ibid., 26–29.

59. Kagan, "Adversarial Legalism and American Government," 373.

60. Aristotle labeled as "political rule" decision making through deliberation by "persons who are similar in birth to the ruler, and are similarly free" (Aristotle, The Politics, trans. Ernest Barker [New York: Oxford University Press, 1979], 105).

61. Lumping is one of the dominant responses to injury, far more common than litigation. For example, much of the costs of accidents is borne by the injured themselves. See Hensler et al., Compensation for Accidental Injuries in the United States. A household study conducted as part of the Civil Litigation

62. Pfennigstorf and Gifford, A Comparative Study of Liability Law and Compensation Schemes in Ten Countries and the United States, 145.

63. Cross and Hsieh, "Injury, Liability, and the Decision to File a Medical Malpractice Claim," 413–436. The study found that in cases of severe neonatal injuries, families without health insurance were more likely to sue for malpractice. One reason for this, however, may have been that Florida, the state in which the study was conducted, has repealed the collateral source rule. This means that those families who had their medical costs paid by insurers could not collect these as damages in a malpractice suit.

64. See Kathryn Moss et al., "Unfunded Mandate." In recent years EEOC officials have instituted a claim prioritization system and a mediation program in order to resolve a larger number of claims more efficiently. Despite improvements in management, however, observers suggest the agency is still overwhelmed by its tasks (Reed Abelson, "Anti-Bias Agency Is Short of Will and Cash," New York Times, July 1, 2001, sec. 3, 1).

65. Robert A. Kagan and Eugene Bardach, Going by the Book: The Problem of Regulatory Unreasonableness(Philadelphia: Temple University Press, 1982); and Kagan, "Managing Regulatory Enforcement in the United States," in Handbook of Regulation and Administrative Law, ed. David Rosenbloom and Richard Schwartz (New York: M. Dekker, 1994).

66. See, for example, Shapiro, Who Guards the Guardians; Mashaw, Bureaucratic Justice; Melnick, Regulation and the Courts; and Rabkin, Judicial Compulsions; but see Coglianese, "Litigating within Relationships."

67. American Law Institute, Reporters’ Study: Enterprise Responsibility for Personal Injury(Philadelphia: ALI, 1991).

68. Carroll et al., No-Fault Approaches to Compensating People Injured in Automobile Accidents.

69. See, for example, Steven Sugarman, "Doing Away with Tort Law," 555; Paul C. Weiler, Medical Malpractice on Trial; and Jeffrey O'Connell, "A Draft Bill to Allow Choice between No-Fault and Fault-Based Auto Insurance."