Do Institutions Really Matter? Assessing the Impact of State Judicial Structures on Citizen Litigiousness

Abstract

The issue of American litigiousness, especially in the area of tort litigation, has long been a topic of academic debate and political consternation. While some researchers argue over the existence of a 'litigation explosion' or its extent, others seek to understand the root causes of citizen legal mobilization and why governmental entities (states, municipalities, etc.) often have very different experiences concerning citizen legal mobilization and rates of litigation. A number of explanations for variance in state litigation rates have been offered, including political culture, socio-economic dynamics, and legislative intervention (e.g. tort reform), among others. Some of these studies find that litigation and citizens' use of the courts provide an alternative means of political mobilization when more traditional means of political participation may be perceived as less viable. While such studies have provided important insight into citizens' propensity to invoke the state courts to settle disputes, there remain unresolved questions in the literature concerning state litigation rates. In addressing the puzzle of state legal mobilization, existing studies have largely ignored an important theoretical consideration: the institutional structure of state court systems. We draw upon a well-established state politics literature to argue that the structural aspects of state judicial systems, specifically the professionalism of the courts and the method of judicial selection, have important implications for state citizen legal mobilization (litigiousness). We further suggest that the effects of these institutional structural characteristics do not work independently, but are conditioned upon the ideology of the citizenry in which they operate. We consider tort litigation rates in 10 states over 20 years to assess the proposition that these institutional structural characteristics of state court systems affect state citizen legal mobilization, expressed as litigation rates.