INTRODUCTION
Although Alvin Laskin grew plants for a living, no one would ever accuse him of being an environmentalist. Yet Laskin's entrepreneurial efforts managed to create employment for many environmental scientists—and hundreds of lawyers.
In the early 1970s, when Laskin's Ohio nursery business slumped, he found a more lucrative trade: used oil. Laskin bought the oil from factories and sold it for a variety of uses, particularly dust control. Most of Laskin's old oil presumably ended up with his customers, but hundreds of thousands of gallons of the stuff were inadequately stored in corroded tanks and ponds. By the late 1970s, when Ohio officials first investigated the Laskin Poplar storage site, a chemical sludge containing lead, dioxin, and PCBs had leached into the soil and threatened the groundwater.[1] An extensive cleanup was required, eventually costing about $32 million.[2]
The Environmental Protection Agency, which administered the cleanup, would have been happy to bill Mr. Laskin, but he was "judgment proof" —too poor to make it worth going after him. So instead the EPA sued seven of Mr. Laskin's largest customers, big corporations who had either bought or sold the waste oil.
That was just the beginning. The seven corporations decided to sue Laskin's other customers, eventually more than six hundred, to help pay for the bills. The federal government became involved in these lawsuits as a third party. Then the big companies sued each other. Later some of the companies sued their insurers. At one point the disputants literally ran out of lawyers in the Cleveland area to handle all these suits and countersuits.[3]
It took five years for the first group of defendants to settle, and four more years for most of the rest.[4] In 2001, seventeen years after the first lawsuit, lawyers were still battling over who would pay for Alvin Laskin's environmental sins.[5]
LITIGIOUS PEOPLE/LITIGIOUS POLICIES
Stories like this, about litigation seemingly run amok, are common in American popular culture. Anyone who regularly reads a newspaper or watches television has heard, for example, the story of Stella Liebeck, the woman who sued McDonald's after she burned herself with its coffee.[6] Through the media we encounter despondent New Yorkers who jump in front of subways and sue for their injuries, students who sue their professors for bad teaching, parents who sue because their toddlers came to blows on a playground, golfers who sue after being hit by errant tee shots, nonprofit agencies that sue to collect from wavering donors, snackers who sue when their overcooked Pop-Tarts catch fire, prisoners who sue to get chunky peanut butter instead of the smooth kind, game show contestants who sue over a disputed question, and overweight people who sue movie theaters because their chairs aren't sufficiently spacious.[7] There are also "urban legends" that radiate out from the media with ever more outrageous (and almost entirely fanciful) claims, of handymen who sue after their ladders slip on cow manure, restaurant customers who collect thousands of dollars after eating "Kentucky Fried Rat," and psychics who assert that CAT scans withered their powers and receive hundreds of thousands for their troubles.[8]
These are not simply amusing vignettes. Although they appear in the media as unconnected anecdotes, a serious theme underlies these stories. They are parables about a fundamental breakdown in American society. The prerequisites for peaceful community life, the stories suggest, have evaporated. Greed, individualism, and contentiousness are winning out over, as one book puts it, "common sense."[9] This theme is so readily accepted that such stories resonate even when demonstrably false. Meanwhile, careful academic research that debunks the notion of a "litigation explosion" in the United States fails to make much of an impression.[10] Nearly everyone, a few lawyers and legal academics to the contrary, seems to believe that litigation is out of control.
Explanations for litigiousness are eagerly pronounced. Many blame greedy lawyers, always an easy target.[11] Others point to changes in American culture, with its growing emphasis on individual rights and neglect of the common good. Americans, it is said, have become whiny victims who sue at the first opportunity.[12] These explanations share a common feature: they focus on the individual's decision to sue. From this perspective the problem is that Americans have chosen to litigate rather than tolerate their discomforts or settle their disputes amicably. The
It seems a persuasive view. Yet though the anecdotes that punctuate this narrative of cultural decline are vivid, the evidence to support it is surprisingly scarce. Research typically shows Americans rarely take their disputes to court. Of every one hundred Americans injured in an accident, only ten make a liability claim, and only two file a lawsuit.[13] Of every one hundred Americans who believe they have lost more than $1,000 because of someone else's illegal conduct, only five file a suit.[14] When medical malpractice results in serious injury, only one of eight victims makes a claim.[15] Far from a nation of litigators, the United States seems to be filled with "lumpers," people inclined to lump their grievances rather than press them. Further, claims of a "litigation explosion" are overblown; indeed some studies suggest that those supposedly stoic pioneers of frontier America were far more inclined to sue than their allegedly litigation-loving descendants.[16] Nor do Americans today seem much more litigious than citizens of other nations, though comparisons are difficult and the data skimpy. Some researchers even believe that Americans are no more innately lawsuit prone than the Japanese, the supposed saints of nonlitigiousness.[17]
If all this is true, one might ask, why is there so much complaining about litigation in American life? How can the image of sue-crazy Americans creating a litigation explosion be so far removed from the reality?
Part of the answer is that there is a dedicated corps of image-makers, business interests that have conjured a litigation "crisis" for their own political ends. As several researchers have shown, these interests have mounted a self-serving attack on one form of litigation, personal injury lawsuits, that has succeeded in convincing Americans of their society's descent into the wickedness of litigiousness.[18]
But this, I believe, is only part of the story. Complaints about the place of litigation in American life are not, in fact, merely the artifact of the conjurers' skills, the residue of a cultural con job. For while there is little evidence that Americans are more sue happy than citizens of other nations or that there has been an "explosion" in personal injury lawsuits, litigation clearly does have a distinctively important role in American life. As sensational and unrepresentative as the litigation horror stories are, they do reveal one important truth: the range of matters that can be litigated in the United States is broader than in other nations and growing each year. Forms of litigation that are unknown elsewhere have in the
In castigating Americans for being too individualistic and sue crazy, commentators have themselves committed the sin of methodological individualism: focusing on individual behavior while downplaying the significance of social structures.[22] The evidence that individual Americans have a greater lust for litigation than their counterparts in Japan is murky at best. The evidence that the United States, as compared to Japan, has adopted policies that encourage litigation is overwhelming.[23] I take no position in the ongoing debate over the proclivities of individuals, whether in Japan or the United States, in the eighteenth century or the twenty-first. It is the comparison of institutional arrangements that arouses my interest. My focus, then, is on the litigiousness of American laws rather than on the purported litigiousness of the American people.
This book examines the causes of America's uniquely litigious public policy style. Litigious policies
[∗] I am aware that litigious is normally used as an adjective applied (almost always as a criticism) to groups of people. It is a bit strange to call a policy "litigious," but I have not found another way to adequately describe the phenomenon in which I am interested.
are laws that promote the use of litigation in resolving disputes and implementing public policies by (1) creating rights to sue, (2) lowering barriers to litigation, or (3) increasing the rewards of litigation.[24] These policies produce an environment in which lawyers and legal concepts structure everyday practices and where the threat of a lawsuit always looms—even when, as is usually the case, no lawsuit is filed.Without litigious policies there could be no anecdotes about the purported litigiousness of the American people. The parties in the Laskin Poplar oil-dumping case, for example, would have been powerless to sue if not for the "Superfund" law, which was devised by Congress in 1980. The Superfund law commits the federal government to fund a large share of the cost of toxic dump cleanups through litigation against polluters. In addition, Superfund allows the government to hold any individual or business implicated in the waste site liable for the entire cost of cleanup, whether or not the individual followed state and federal dumping laws and no matter when the waste was dumped. The law also allows "partly responsible parties" to sue each other so as to spread costs around. Thus Superfund created the legal structure that allowed the explosion of litigation in the Laskin case.
This structure did not, of course, ensure litigation. The parties could have worked out their differences without suing, as has been done in many Superfund cleanups.[25] Yet the net effect of Superfund has been to make Superfund disputes a matter for lawyers and legal doctrine as well as engineers and engineering practices.
In toxic waste as in many policy realms, the American approach is distinctively litigious. Every industrialized nation has a problem with toxic dumps, but no other nation uses such a court-oriented solution. Some European nations hold polluters liable for cleanup only if their waste disposal methods were illegal when they did the dumping.[26] Others promote the principle of "polluter pays" in all cases but grant the government only a limited power to enforce the principle.[27] By contrast, the American approach, which grants the federal government powerful litigation rights and encourages "partly responsible parties" to sue each other, makes litigation a central aspect of disputes over toxic waste dumps.
But Superfund, like many litigious policies, is under attack. Researchers have long criticized Superfund for its litigiousness, and in recent years a plethora of groups have mobilized to reform or repeal it.[28] In 1994 the Clinton administration created a Superfund reform plan aimed at reducing litigation in the program and assembled a grand coalition of manufacturers, insurers, and environmentalists in support of the plan. The administration's bill was beaten, however, by Republicans and business groups who wanted more radical change. Since then Congress and both the Clinton and George W. Bush administrations have continued to wrestle over how best to fix the Superfund liability scheme.[29]
The battle over the Superfund program is only one small part of what has become a widespread debate over litigious policies in the United
Antilitigation sentiment has rolled through the nation's legislatures, resulting in a profusion of bills designed to limit lawsuits. The movement for "tort reform," heavily funded by business groups and debated in every legislature in America, is the most prominent example. But tort reform is just part of the struggle. In areas as diverse as the environment, civil rights, crime, welfare, and family policy, litigiousness has become part of the political debate, and one group or another has pledged to reduce or limit it.
Antilitigation reformers, however, confront powerful forces in American culture and politics. It would seem that no crusade would be more popular, but in fact antilitigation campaigns have often met with strong resistance, and their record is decidedly mixed. Despite the exertions of a cavalcade of researchers, journalists, public relations specialists, and lobbyists—and despite the millions of dollars spent in their quest—most litigious policies remain in place. Moreover, for every successful effort to limit litigation, several new species of lawsuits seem to pop up nearly every day, some brought into the world by the very politicians who campaign against litigiousness.
If lawyers, litigants, and lawsuits are so regularly vilified in American culture and politics, why are litigious policies difficult to dislodge? Commentators often point to the machinations of politically powerful lawyers
The roots of America's litigious public policy style, I contend, lie much deeper. Building on the work of Robert Kagan,[38] I locate these roots in fundamental features of the American constitutional tradition. This tradition, Kagan points out, combines a profound distrust of centralized governmental power with a set of structures—federalism, separation of powers, an independent judiciary—designed to tame that power. In this book I demonstrate how those structures induce litigious policy making and how they help resist antilitigation reforms. The constitutional tradition, I argue, creates powerful incentives for activists
[†] I use the term activists to refer generically to legislators, "policy entrepreneurs," "moral entrepreneurs," interest group leaders, government officials, and others involved in the policy-making process who favor governmental action on some issue. I do not attempt to analyze how different actors might, because of their distinctive positions in the policymaking process, differ in their incentives. Instead I focus on something they all share—the incentives created by the American constitutional tradition, which affects each of them.
—those who favor governmental action on social problems—to implement their schemes through courts. Thus it takes powerful forces to reform litigious policies.Litigious policies appeal to activists for two basic reasons. First, courts offer activists a way to address social problems without seeming to augment the power of the state. Litigious policies nicely match the preferences of Americans, who want action on social issues yet are ambivalent about the typical tools of the state—bureaucratic regulation and welfare programs. Courts and individual rights provide a promising alternative.
Second, litigious policies offer a means of overcoming the barriers to activist government posed by the structures of the Constitution. The Constitution's dispersion of power, to states and localities on one hand and to the branches of national government on the other, makes it difficult for activists to control the implementation of their schemes and easy for enemies to derail them. Courts offer a way around these problems. Courts can, for example, enforce national mandates against recalcitrant localities, thus mitigating the impact of federalism. Within the national government, courts can protect policies from "capture," a danger that separation of powers exacerbates. Through litigious policies, activists seek to surmount the fragmented, decentralized structure of American government, which (as its creators intended and James Madison famously boasted) makes activist government difficult. Attempts to limit litigation,
THE EXPANSION OF LITIGIOUS POLICIES
In Democracy in America, Alexis de Tocqueville, the great French observer of American society, famously declared after traveling through the United States in the early 1830s that "there is hardly a political question in the United States that does not sooner or later turn into a judicial one."[39] Tocqueville's statement contained an essential truth about American politics, particularly true in his day, when the absence of a strong national administration left courts as the primary regulators of the economy.[40] Yet Tocqueville's observation was made in an age when the scope of American government—and thus of "political questions"—was relatively limited.
That is no longer the case. In the twentieth century, American government took on more and more of society's problems and conflicts. The growth of the federal government, punctuated by the New Deal, World War II, and the Great Society, is a well-known story. Less attention has been paid to a parallel growth in the responsibilities of courts, an expansion that has made Tocqueville's proclamation even more accurate today than when he wrote it. Beginning after World War II and accelerating in the 1960s and 1970s, courts and legislatures created new avenues of litigation across many realms of law and politics.
One of the first arenas in which this trend developed was tort law, the law of personal injury. In the first half of the twentieth century, tort law severely limited the ability of potential plaintiffs to be compensated for their injuries. Beginning in the 1940s a new emphasis on compensation and loss spreading developed. In 1952 the California Supreme Court for the first time allowed plaintiffs to recover for "intentional infliction of emotional distress," and over the next two decades the Court abolished the doctrines of charitable, familial, and governmental immunity.[41]
Those were just the first steps in a series of major changes in tort law. California Supreme Court judge Roger Traynor had urged in a famous 1944 case that manufacturers of products be strictly liable for injuries arising from the use of defective products. Plaintiffs, he argued, should not have to show that the manufacturer was negligent to collect damages.
In the 1970s, in perhaps the biggest change of all, the California Supreme Court eliminated the contributory negligence rule, which had barred any recovery for plaintiffs partly responsible for their injuries. Instead the court substituted the "comparative negligence rule," instructing juries to reduce awards by the percentage that plaintiffs contributed to their injuries through their own negligence. Legislatures and courts in other states followed California's example. Meanwhile courts made it much easier for plaintiffs to sue in medical malpractice cases, eliminating defenses, creating new causes of action, and extending the statute of limitations. Changes in procedural rules made it easier to bring "mass torts" and class action lawsuits for injuries either proven or alleged to be caused by asbestos, Agent Orange, breast implants, diet pills, genetically modified foods, HMOs, even the Holocaust—as well as such lesser evils as defects in the Pentium computer chip.[42] Enterprising plaintiff lawyers developed new theories of damages, and awards for "pain and suffering," loss of a family member, and punitive damages ballooned. As a result both the opportunities for and potential rewards of tort litigation have greatly increased.
A second source of litigation growth was the civil rights movement and the proliferation of antidiscrimination statutes that followed. Out of Brown v. Board of Education, the Supreme Court's 1954 ruling that segregation in public schools is unconstitutional, grew the notion that law could be used to transform society and achieve social justice. One of the crowning achievements of the civil rights movement, the Civil Rights Act of 1964, gave minorities the right to sue discriminating employers. That model—of giving victims of discrimination the right to bring lawsuits— has since been expanded to cover women, the aged, gays and lesbians, religious minorities, and people with disabilities, and has inspired a panoply of civil rights laws at the national, state, and local levels. Alongside these statutory antidiscrimination rights, the Supreme Court expanded the bases for claims under the Constitution's Equal Protection Clause to include discrimination on the basis of sex and other attributes. Both constitutional and statutory antidiscrimination law has grown to govern more and more domains, from education and employment to law
As the range of civil rights laws has grown, so have the damages available to plaintiffs. While the Civil Rights Act of 1964 allowed successful plaintiffs to claim only back pay, reinstatement in their jobs, and attorney's fees, courts and legislatures have in many instances also granted punitive and pain-and-suffering damages, enlarging the potential rewards of litigation. The 1991 Civil Rights Act, for example, gave plaintiffs in sex, race, and disability discrimination cases the right to collect up to $300,000 in punitive and pain-and-suffering awards. Thus the potential rewards of civil rights litigation have continued to grow.
Civil rights law was one of many areas of constitutional litigation enlivened by the jurisprudence of the Earl Warren–led Supreme Court in the years 1953 to 1969. The Warren Court's emphasis on protecting the rights of minorities vastly increased the reach of First Amendment protections of religion, speech, press, and assembly.[43] A new right of privacy was articulated by the Warren Court in 1965 and applied in 1973 by the Burger Court to abortion, one of the most controversial issues in American politics. Each of these expansions in constitutional law has created a new stream of litigation.
In terms of sheer volume, however, the Warren Court's criminal law cases have probably had the greatest impact. The Gideon v. Wainwright decision, for example, helped transform criminal law by giving every defendant, at least in theory, assistance to fully litigate his or her case. The Warren Court's expansion of habeas corpus rights similarly increased the ability of defendants to challenge the practices of police and of state courts through appeal to federal courts. Thus constitutional law became the means by which the abuses of local officials were regulated. The Court's rulings on the Fourth, Fifth and Sixth Amendments created new standards of criminal procedure—and new opportunities to challenge conduct that did not live up to these standards. Death penalty litigation, for example, has become lengthy and complex due largely to the Warren Court's rulings and later decisions on the Eighth Amendment's protection against "cruel and unusual punishment." Thus in criminal law the Supreme Court has produced a host of litigious policies.
Moving beyond the criminal justice system, courts became deeply involved in managing the conduct of a wide range of public officials.
In the late 1960s, courts also increased their scrutiny of administrative agency decision making. They relaxed traditional limitations on lawsuits to allow various plaintiffs—frequently public interest groups—to challenge agency actions. Often the outcome of this litigation was an order to agencies to implement or enforce regulations or to explain why they had not done so.[45] Fearing that agencies were not consulting a sufficiently broad range of voices in their deliberations, courts required agencies to allow public interest groups to participate in decision making and to have their concerns addressed. Under the doctrine of the "hard look," courts scrutinized the actions of agencies to see whether they accorded with statutory guidelines, often in a way that slid over into second-guessing the substance of agency decisions.[46]
Litigants were not only allowed to challenge the decisions of agencies but also given the right to bypass those agencies by enforcing regulatory statutes themselves as "private attorneys general." The flurry of regulatory statutes passed in the early 1970s, like the civil rights statutes of the 1960s, often granted potential litigants one or both rights.[47] The ability of private litigants to enforce statutes by themselves was certainly nothing new: in the United States and elsewhere it has historically been a mode of criminal enforcement. But these regulatory statutes, governing clean air and water, consumer credit, and product safety, reinvigorated private law enforcement in realms that had been considered the province of the state.
How to pay for all this litigation? The Legal Services Corporation, created in 1965, became one source, though most of its resources were devoted to helping poor people in everyday disputes with landlords, businesses, and estranged spouses. In the 1960s, courts began awarding attorney's fees to be paid by defendants to prevailing plaintiffs in public
Not content to sit by while private attorneys brought lawsuits on prominent social issues, public officials in the late 1990s got into the practice, as well. Thus grew yet another form of litigious policy making—lawsuits brought by government agencies themselves against producers of troublesome products. Lawsuits against the makers of cigarettes, guns, and lead paint were brought by states and the federal government, often in the absence of regulatory or legislative action. The threat of a federal lawsuit, for example, convinced Smith and Wesson to change the way it makes and sells handguns—changes Congress was unwilling to legislate. Government-led lawsuits are often brought by a partnership between public and private attorneys, with the possibility of enormous gains for both sides, an arrangement that has been heavily criticized.[51]
As if to spotlight the growth of litigious policies in the twentieth century, the two most dramatic moments in American politics at the turn of the century each took the form of litigation. First was Bill Clinton's impeachment trial, made possible by the development of sexual harassment law. Clinton's lies about Monica Lewinsky rose to the level of "high crimes and misdemeanors" in some (mostly Republican) eyes because they occurred during a legal proceeding, a deposition in a harassment lawsuit brought by Paula Jones. The impeachment struggle that ensued was largely a debate over the weight of the obligation to honor even those legal processes one considers illegitimate. The next great presidential political-legal battle was the fight between Al Gore and George W. Bush over the 2000 election. Bush commenced the barrage of lawsuits by arguing in federal court that a hand recount would violate the Fourteenth Amendment equal protection rights of voters—a novel argument that demonstrated once again that Republicans, like Democrats, are skilled at creating new species of legal claims when the need arises.[52] That didn't stop conservative commentators from excoriating
The Clinton impeachment and the 2000 election struggle served only to underline a basic fact of American life that stretches far beyond presidential politics: across many areas of law and public policy, both the opportunities for and rewards of litigation have vastly increased. Throughout the second half of the twentieth century, Americans increasingly turned to litigation as a means of resolving troubling social issues. In other words, Tocqueville was, as usual, ahead of his time.
THE CONSTITUTIONAL THEORY
Why have Americans turned to litigation to solve social problems? Why, despite all the jeremiads against litigiousness that ring through the nation, has it been so hard to get them to turn away? The argument of this book is that the ultimate answer lies not with the usual suspects— rapacious lawyers and their rights-conscious clientele—but with fundamental features of the American constitutional tradition, which create incentives for activists to favor litigious policies.
Robert Kagan has highlighted the importance of the decentralization of American government in accounting for the distinctive role of litigation in American public policy.[54] He points to a fateful combination in contemporary American politics: a polity that demands governmental activism on social problems has been joined to an inherited governmental structure whose hallmark is division of authority. The framers of the Constitution, fearful of governmental tyranny, created a highly permeable, decentralized state structure. The object was to make it hard for the national government to do much of anything. In this object, the framer's design eventually failed: it did not forestall a massive expansion of the national government. Yet the design has had an effect on the forms that the expansion has taken. In particular, it has channeled many demands for action on social problems toward courts.
Kagan's research, with its linkage between the constitutional tradition and the shape of American public policy, is the basis for what I will call the Constitutional Theory of litigious policy making. The theory is constitutional in two senses. First, it focuses on the importance of three
But the Constitution is not merely a set of rules that political actors strategically manipulate. It is, as its name implies, constitutive.[55] The Constitution shapes the way Americans view politics and government, even the way they see their own political interests. And this suggests the second sense in which the theory is constitutional: it emphasizes the significance of the distrust of centralized governmental power that is at the core of the American constitutional tradition. American activists support court-based schemes in part because of their ambivalent attitudes toward the welfare-regulatory state, attitudes that are strongly reinforced by the structures in the Constitution.
The constitutional tradition creates three specific incentives for activists to support litigious policies. Through litigious policies, activists can (1) insulate implementation of policy from political enemies (the insulation incentive); (2) do good things for constituents without spending governmental dollars (the cost-shifting incentive), and (3) gain power over the actions of states and localities (the control incentive). These three incentives—insulation, cost-shifting, and control—explain the prominence of litigious policies in American politics and the difficulty of dislodging those policies.
THE INSULATION INCENTIVE
American activists support litigious policies in part because they provide a means of implementing public policy that is relatively insulated from political enemies.[56] Implementation is, of course, a vital step in the policy process: for activists, a policy that is never implemented, or implemented in ways they abhor, can be worse than no law at all. But implementation is a particularly problematic enterprise in a system of separated powers, such as that of the United States. Federal bureaucracies assigned to implement policies in a separated system serve a thousand masters—the president, members of Congress, interest groups, and the public. Each of these masters can seek to derail implementation of a policy. The public policy literature is rife with tales of regulatory agencies "captured" by the regulated, resulting in lax enforcement of rules. Courts, because of
THE CONTROL INCENTIVE
Activists are also attracted to litigious policies as a way to gain control over the actions of states and localities.[57] Federalism creates strong barriers to national controls over local policies. Within their own spheres, the Constitution says, the states are supreme and cannot be told what to do by the national government. Thus activists who wish to gain nationwide control over, say, school districts or police departments face severe constraints. In many nations the best way to control what's taught in schools is to become secretary of education. In the United States, by contrast, the secretary of education is relatively powerless: this official can only exhort school districts to change their curricula, or perhaps bribe the districts with federal aid. Litigious policies offer an attractive alternative to these routes. By enforcing court-protected rights against local agencies, activists can get federal courts to command the changes they wish. Civil rights laws, for example, gave civil rights activists a way to challenge the actions of local officials in the South. Fourth Amendment search and seizure lawsuits became a means to control the procedures of the police. Environmental laws have been used to control local development. These forms of litigation have the added virtue of appearing as "checks" on the abuses of local governmental officials, a frame that resonates strongly in a nation whose constitutional tradition is built around a fear of unchecked governmental power.
THE COST-SHIFTING INCENTIVE
The dream of all politicians is to do good things for their constituents without having to pay for them. Litigious policies make this fantasy a
Taken together, the insulation, control, and cost-shifting incentives explain the staying power of litigious policies in American politics. That is not to say that these incentives are ever present and all-powerful. They vary in intensity both over time and across policy domains. The insulation incentive, for example, does not operate when activists are convinced that they can trust bureaucratic agencies to implement the law as they wish.[59] Similarly, the control incentive is relevant only to policy domains in which states and localities are significant actors. Control is not, for example, an incentive in a domain such as defense policy, where there is usually no need to wrest implementation from states and localities. Moreover, none of these incentives is relevant unless those who desire governmental action on a social problem gain the power to enact their desires into law—"activism" is a variable in itself. Thus to say that the insulation, control, and cost-shifting incentives have fostered litigious policies is not to claim that American public policy has been invariably litigious. It does suggest that these three incentives create a generalized tilt in American public policy toward courts as compared to the public policy of other nations. The three incentives explain why many areas of public policy that are bureaucratized in other nations are more judicialized in the United States.
More important for this study, the Constitutional Theory provides an explanation for why antilitigation efforts, despite their apparent popularity, face strong resistance. Courts provide an attractive way for American activists to meet their goals, and it takes an extraordinary effort to stop them or divert their energies to other channels.
The result of all this—greater judicialization of matters that in other nations are bureaucratized—takes on its full significance when we compare the organization of the American judicial system with that of the typical bureaucracy. Bureaucracies are centralized hierarchies: in the bureaucratic model, government policies are implemented by civil servants who are following fixed rules laid down by superiors. The American judicial system, by contrast, is based on what Kagan has called the model of "adversarial legalism." In an adversarial legal system, issues are organized as formal disputes between parties rather than as rules implemented by civil servants; the parties (individuals and organizations, mostly nongovernmental) have the burden of invoking and enforcing the rules. The decision makers in an adversarial legal model (judges and juries in the American court system) are not tightly bound to a centralized higher authority as in the bureaucratic model. The rules themselves are constantly in dispute and evolving: in the course of arguing how rules should be enforced, the parties also argue about what the rules should be. Public policy in an adversarial legal system, then, is decentralized, privatized, and fluid, often unpredictable.[60]
As the Constitutional Theory suggests, some of these features of adversarial legalism are what makes litigious policies so attractive to American activists. The decentralization inherent in adversarial legalism, for example, helps insulate the policy from control by enemies, while privatization means that implementation costs are not borne by the public fisc. But these features can also be sources of discontent. The fluidity and unpredictability of an adversarial legal system create troublesome uncertainties for the actors that system regulates. It is difficult, for example, to be certain about what kind of treatment a jury in a medical malpractice lawsuit might consider adequate, so doctors are tempted to practice "defensive medicine." Moreover, the privatization of public policy inherent in the adversarial legal model makes implementation dependent on the resources and choices of nongovernmental actors, thus creating further uncertainty, and great inequities as well. Finally, the process of implementing public policy through disputes among parties can be extraordinarily costly in both time and money, as the Laskin Poplar Superfund
PATHS TO REFORM
This book describes a wide variety of antilitigation efforts, but at the outset it is helpful to contrast two basic forms, which I call discouragement and replacement. Discouragement policies aim to restrict or discourage litigation by making it harder or less rewarding to bring lawsuits. A typical discouragement policy, adopted by many states, is to cap the amount of money a plaintiff can win for pain-and-suffering damages in a personal injury lawsuit. Discouragement policies like this do not stop litigation altogether but can reduce the volume and intensity of claims. Replacement reforms, by contrast, eliminate whole categories of litigation and replace them with some alternative mechanism. One notable example of replacement reform is the New Zealand accident insurance system, in which accident victims apply to a government agency for compensation rather than suing their victimizers in court. Another, less exotic replacement reform is the American workers' compensation system, an employer-funded insurance system designed to replace litigation over workplace injuries. The most recent replacement reform is the September 11th Victim Compensation Fund, a federal program intended to replace litigation over the terrorist attack on the World Trade Center towers and Pentagon. Replacement reforms like these can eradicate whole species of lawsuits.
Discouragement campaigns, particularly the tort reform movement, have become the most prominent of all antilitigation efforts. This book, however, focuses on replacement reforms because they are the most revealing of the causes of America's litigious public policy style: replacement efforts, unlike discouragement campaigns, force policy makers to compare the costs and benefits of litigious policies to alternative mechanisms designed to achieve similar goals. The study of replacement politics, then, can spotlight what exactly makes the mechanism of litigation so enticing to American policy makers—and what makes alternatives, especially the bureaucratic approaches used in other nations, less alluring.
The study of discouragement politics is, by contrast, bound to be disappointing on this score, because discouragement campaigns aren't ultimately about the virtues and vices of litigious policies. Discouragement politics, instead, is a fight over distributional justice. Discouragement battles
Replacement politics is much more complex. Reformers in this path focus on the negative effects of adversarial legalism, principally its high transaction costs and uncertainty, and argue that the social problems involved can best be solved by some alternative mechanism. They seek to bring together groups associated with both plaintiffs and defendants to agree on the alternative. This path can lead to the elimination of whole species of lawsuits, but it is fraught with difficulties, as the case studies in this book demonstrate.
The first and most important barrier to replacement reforms is suggested by the Constitutional Theory. Many of the alternatives to litigation involve bureaucratic regulation or welfare programs. These alternatives are common in other economically advanced nations, but in the United States the constitutional tradition creates strong incentives for groups to favor litigation over these other forms of governmental action. The incentives—insulation, control, and cost-shifting—have to be overcome if governmental antilitigation reforms are to be adopted.
Related to the Constitutional Theory is a second, more general barrier. Replacement reforms are usually controversial because they reverse one of the major features of adversarial legalism—the privatization of public policy—by socializing what seems to be a conflict between individuals. This movement from individualized dispute to socialized solution is often resisted in American politics. In litigation, problems appear as discrete disputes between individuals. When, for example, your car is hit by a careless driver, both the problem and the solution seem clear: the numbskull who hit your vehicle should be punished by a lawsuit. Replacement reforms reconceive individual conflicts as social problems. So, for example, "no-fault" auto insurance is premised on the view that accidents are a predictable social hazard produced by automobiles and that the problem is best solved not by punishing individual drivers but by pooling the risk of accidents through the most efficient insurance system possible. As later chapters illustrate, the no-fault idea is controversial in
A third barrier to replacement reforms is the difficulty in bringing groups associated with plaintiffs and defendants together, even on the basis of common interests. The two sides usually have bitter rivalries, disparate cultures, and conflicting alliances. Each deeply distrusts the other. Coming to agreement on some alternative is hard enough; working together against opponents of reform is even harder. It takes an unusually gifted politician to create an effective plaintiff-defendant alliance, as we will see.
A fourth barrier is uncertainty about the alternative to litigation. Replacements for litigation are often complex and their effects hard to measure in advance. Replacements involve complicated trade-offs and mechanisms the likes of which only the most dedicated policy wonks are likely to understand. In an atmosphere of distrust, it is easy for opponents of the replacement reform to sow doubts about the alternative and hard for proponents to assuage those doubts.
Together these are formidable obstacles. Nonetheless, replacement proponents sometimes overcome them and enact sweeping reforms. The struggles over replacement proposals, though, reveal the deep political roots of America's litigious public policy style.
THE PLAN OF THE BOOK
Many studies have compared the social policies of the United States to those of other advanced industrialized nations and found American policy to be uniquely court oriented. This book probes the political origins of these differences, the mechanisms that have kept litigious policies in place, and the conditions under which they may be successfully attacked. Thus the bulk of this book offers selected scenes from the struggle over litigation in American politics. Chapter 1 is an overview of the politics of litigation in the United States. Chapters 2 through 4 tell the stories of three antilitigation campaigns: the (feeble) attempt to forestall the creation
This is a book about litigation, but as the reader will soon discover, there is very little in these pages that directly examines the legal process or how courts do their work. Instead this book focuses on activists, lobbyists, policy experts, and legislators as they wrestle over litigious policies.
Why travel to legislatures to understand litigation? So far, most academics who have written about the litigation debate have analyzed it at the level of popular culture. They have highlighted the ways in which those who campaign against personal injury lawsuits use cultural myths or beliefs about litigation to strengthen their position.[61] These studies are fascinating but necessarily limited in scope. First, they are limited to personal injury law and do not explore other arenas of antilitigation politics. Second, they focus on the production of litigation myths and so do not closely examine the policy-making process. In this book I closely scrutinize the role of ideas and interests in the making and unmaking of litigious policies.
There are several works that examine aspects of the politics of litigation, but no comprehensive study.[62] American political scientists are quite familiar with the long-standing struggles over regulation and deregulation in the United States and the unending battle over the welfare state. Hundreds of books have been written about the politics of welfare and regulation. In this book I describe a parallel universe, the world of litigation politics, a realm that is just beginning to be explored.