Civil Litigation System Research Articles

Hoffman v. Monsanto: Courts, Class Actions, and Perceptions of the Problem of GM Drift

Hoffman v. Monsanto raises questions about the civil litigation system. Are courts appropriate institutions, and are class actions the appropriate procedure, for resolving disputes about genetically modified organisms (GMOs)? After addressing the institutional question, this article focuses on procedure. Although class actions are designed to empower group litigation, environmental class actions are rarely permitted. This is partly because their claims for private law actions seeking monetary compensation cause courts to focus on individual aspects of the problem, and the collective harm caused by widespread environmental effects is overlooked. Because most environmental lawsuits are prohibitively complex and expensive for individuals to litigate, this results in a denial of justice. It also prevents courts from playing their institutional role in the struggle to craft appropriate legal responses to GMOs. Greater focus on the role of groups and the collective nature of environmental harms would lead to different approaches to interpreting class action procedure.

Should Tort Damages be Multiplied?

The notion that damages should be multiplied by the reciprocal of the probability of punishment is one of the basic lessons of the law and economics literature. However, the simple 1/p multiplier turns out be inapplicable in the civil damages setting. The multiplier that brings about first-best deterrence must be chosen by striking a balance between the supply of lawsuits and the need to internalize costs. Moreover, given the costs of litigation, a multiplier that minimizes overall social costs (in contrast to achieving first-best deterrence) may need to be set at a level that effectively bars many claims. This article derives optimal damage multipliers for a costly civil litigation system and examines the conflicting implications of deterrence and social cost minimization as objectives in the design of an optimal multiplier. An empirical application suggests that the first-best deterrence multiplier for the tort system is roughly equal to two. Copyright 2005, Oxford University Press.

American Academy of Neurology policy on expert medical testimony

The authors of “Expert medical testimony: Responsibilities of medical societies” express frustration with the American civil litigation system, particularly (in their opinion) the inability of judges and juries to properly evaluate “expert” medical testimony.1 Based upon my experiences as the current general counsel of the American Academy of Neurology and as a former partner in a law firm that specialized in medical malpractice defense, I understand that frustration. Our civil litigation system works well if the judges devote their full attention to pretrial, trial, and post-trial proceeding; the trial and defense attorneys are professional advocates for their clients; all expert witnesses are professional, ethical, and knowledgeable; and the juries are impartial, educated, and engaged throughout a usually lengthy and sometimes tedious trial. Unfortunately, this is not a perfect world. The medical community can attempt to improve the system by advocating for tort reform at federal and state levels. The Academy’s board of directors is now providing substantial financial and staff resources to the recently established Center for Health Policy to advocate on behalf of neurologists. Similarly, the Web sites of the American Medical …

News media reporting on civil litigation and its influence on civil justice decision making.

The news media have the potential to act as a powerful influence on the civil litigation system, influencing decision making in particular cases and on the system more generally as media reports influence the decision making of various participants in the system. This paper reviews the research that has examined the relationship between news media reporting and civil litigation and proposes a framework that integrates this work and provides guidance for future research efforts. Specifically, we discuss the nature of media reporting on civil litigation, perceptions of the civil litigation system held by the public and legal actors, and the potential influence of news reporting about civil litigation on the decision making of jurors, judges, civil litigants, and policymakers. Overall, the research suggests that news reporting of civil litigation presents a systematically distorted picture of civil litigation and that this reporting can influence perceptions and outcomes of civil litigation in various ways. However, there are many gaps in the existing research that need to be filled. The proposed organizational scheme helps to identify ways that future research can provide links between the findings of existing research and to identify ways in which this research can be extended to new areas.

Should Tort Damages Be Multiplied?

The notion that damages should be multiplied by the reciprocal of the probability of punishment has been around since Bentham and is one of the basic lessons of the law and economics literature. However, the simple 1/p multiplier turns out be inapplicable in the civil damages setting. The multiplier that brings about first-best deterrence must be chosen by striking a balance between the supply of lawsuits and the need to internalize costs. Moreover, given the costs of litigation, a multiplier that minimizes overall social costs (in contrast to achieving first-best deterrence) may need to be set at a level that effectively bars many claims. This paper derives optimal damage multipliers for a costly civil litigation system and examines the conflicting implications of deterrence and social cost minimization as objectives in the design of an optimal multiplier. An empirical application suggests that the first-best deterrence multiplier for the tort system is roughly equal to two.

Anchoring in the courtroom: The effects of caps on punitive damages.

Responding to the perception that civil damage awards are out of control, courts and legislatures have pursued tort reform efforts largely aimed at reigning in damage awards by juries. One proposed method for reigning in civil juries is to limit, or cap, the amount that can be awarded for punitive damages. Despite significant controversy over damage awards and the civil litigation system, there has been little research focusing on the process by which juries determine damages. In particular, there is a paucity of research on the possible effects of placing caps on punitive damages. The present research examines punitive damage caps and reveals an anchoring effect of the caps on both compensatory and punitive damages. A second experiment replicates this effect and examines the moderating effect of bifurcating the compensatory and punitive damage decisions.

The Criminal Defense Attorney: Roadblock or Bridge to Restorative Justice

In the mid-1970s, I attended one of the early conferences on Alternative Dispute Resolution (ADR). It was held in Stanton, Virginia in the heart of Mennonite country. At that point, very few people had heard of ADR, but almost all acknowledged that the civil litigation system was broken. The bar establishment was willing to look almost anywhere for help. There were American Bar Association representatives at the conference, and their attitude was one of curiosity that disputes might be resolved outside the traditional litigation and negotiation processes. At the conference, some of the leading speakers were members of Mennonite dispute resolution groups. They seemed to many lawyers as if they had stepped off of another planet, but they told of a history of dealing with disputes through alternate means. They served as teachers to the ABA and the rest of us. Since then, of course, everything has changed. ADR has swept the country. It would probably be malpractice for a lawyer to not consider alternative means for resolving civil disputes.

Deterrence of Corporate Fraud through Securities Litigation: The Role of Institutional Investors

Securities class action lawsuits just might be the schizophrenic stepchildren of our civil litigation system. They are expected to serve two masters at the same time. The first is the goal of obtaining compensation for wronged investors who have suffered losses at the hands of corporate wrongdoers. The second is filling the role of private attorneys general to sanction violators and deter future misconduct.2 There is often a tension between these two masters. Approaches that provide the most effective deterrence of future fraud may not necessarily provide the largest loss recovery.