Abstract

This article reviews the claims about rates of litigation in the United States, as either “too much” or “too little” (e.g. “The Vanishing Trial”). While we need to understand aggregate litigation rates to assess access to justice, it may be more important to understand litigation rates in the context of differentiated case types. Litigation, in some cases, produces too “brittle” (binary) or costly outcomes, which is what led to the American “A” (alternative/appropriate) Dispute Resolution movement. This movement (now moving across the globe) may provide “process pluralism” with greater flexibility in outcome and cost variations, (now often called “a”ccesible dispute resolution”). However, litigation is still important in a variety of justice-seeking contexts (e.g. for new rights creation, old rights enforcement, and precedent elaboration). This article suggests that the question of how much litigation is appropriate in any legal culture is dependent on a variety of factors that goes beyond simple aggregate counting. The article concludes with a critique of recent American legal practices in restricting litigation through mandatory arbitration, non-disclosure agreements, class action limitations, privatized mass claim settlements, and restrictive jurisdictional interpretations in judicial decision making and legislation.

Highlights

  • This article reviews the claims about rates of litigation in the United States, as either “too much” or “too little” (e.g. “The Vanishing Trial”)

  • As Robert Kagan has observed, Americans tend to convert both public and private disputes into an occasion for “adversarial legalism” and to use courts as a principal, if not the only, method for dispute resolution. This is an argument about the “quantification” of litigation – what are the numbers, why are there so many lawsuits, lawyers and disputants and how should litigation occurrences and rates be compared to other forms of dispute resolution? What are the numbers of cases, in what courts? Have they increased over time? Why and with what effects on the legal system and the larger society?

  • This paper suggests that the question of how much litigation is “appropriate” is a complicated question for any society – it is quantitative, qualitative and differentiated

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Summary

The quantitative claims

Whether one thinks that there is too much litigation and reliance on law in American society (Howard 1994) or too little (Abel 1987, Engel 2016), there have been various efforts to measure the number of lawsuits over time and to calculate a variety of litigation rates historically, where possible by state, federal system and by subject area (see e.g. Morton Horowitz’ study of US tort system historically; Horowitz 1977, 1992). In some matters, mass torts and mass claims, a new form of mass settlement through claims facilities and class action settlements (Rule 23e) (see, e.g., Sept 11 Victims Compensation Fund, Deepwater Horizon Oil Spill, Catholic Church claims fund [Elie 2019], product liability and disasters), have removed cases from the courts, both after filing and before filing, but before any individualized adjudication This new form of systemic dispute resolution has advantages (relative speed of recovery) and disadvantages, hotly debated among civil justice scholars (Menkel-Meadow 2009, Resnik 2011, 2015, Moran 2019). It is the numbers, but the kinds, of disputes, and the remedies that litigation can or cannot provide that we should be measuring, while asking what is the purpose of litigation in a particular legal domain or culture

The qualitative claims
Differentiated claims
Findings
Policy implications
Full Text
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