The Tort Panic and After: A Commentary

Abstract

A future historian looking back at our time well might find one of its striking features to be the panic about litigation that gripped American society in the 1980s and persisted into the last decade of the century. It is widely believed that America has too much law, too many lawyers, too much spending on legal services, too much litigation, an uncontrolled activist judiciary, and an obsessively contentious population enthralled with adversary combat It has become a commonplace that America is the most litigious nation on earth (indeed, in human history) and that this excessive resort to law marks America's moral decline and portends economic disaster in an increasingly competitive world. These worries are not spread evenly across the spectrum of litigation. They are centered on tort (and to a lesser extent on such tort-like claims as discrimination). Of the horror stories that figure so prominendy in litigation explosion lore, most are about outlandish claims and extravagant awards in tort cases.2 Most of the widely circulated macro-anecdotes about the civil justice system also emphasize tort themes?ambulance chasing, contingency-fee lawyers; juries biased in favor of injury victims; the devastating effects of product liability and medical malpractice litigation. Treating torts as the paradigm of litigation is revealing, for tort claims have a distinctive though not unique power to disturb relations and challenge understandings. Over a decade ago, David Engel studied a small Illinois county in which concern about litigiousness was high, although there was relatively little litigation. Although contract actions were almost ten times as frequent as personal injury cases, it was the latter that provoked concern. Personal injury cases controverted the community *s core values of self sufficiency and stoic endurance. brought for breaches of contract [typically by members of the local establishment] were generally approved. Lawsuits brought for