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.