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Abstract:
This article contributes to the broad debate over adaptive preferences in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients' new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one's enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and of people with disabilities as natural objects of pity. But a rich psychological literature demonstrates that disability does not inherently limit enjoyment of life to the degree that these courts suggest. Rather, people who experience disabling injuries tend to adapt to their disabilities. To be sure, the views of people with disabilities about their own quality of life are classic adaptive preferences. Accordingly, one might suggest that the legal system should disregard those views. But we argue that the legal system goes wrong by so devaluing the experience of people with disabilities. When courts award damages based on the (nondisabled person's) view that disability is tragic, they distract attention from the societal choices and stigmas that attach disadvantage to disability; they also make it harder for people with disabilities to make hedonic adjustments to their conditions. For deterrence and compensation reasons, people who experience disabling injuries should be able to recover for their physical pain; for medical expenses and the cost of assistive technology and personal assistance; for the opportunities society denies people with their conditions; and for the effects of social stigma. But they should not recover for any purported effect of disability on the enjoyment of life.

hedonic damages, disability, adaptive preferences

Abstract:
Modern civil rights injunctive practice reached unambiguous middle age last year, fifty years after the Supreme Court's second opinion in Brown v. Board of Education. The conventional wisdom that has developed declares this history essentially closed; institutional reform litigation is, as many see it, something that is over and done with. I argue in this article that this conventional wisdom is false. Presenting a longitudinal account of court order litigation involving jails and prisons, and using both systematic data and more qualitative evidence, I establish that at least as to correctional court orders, the claim of 1980s and 1990s decline in the reach of court order regulation is simply wrong. In both jails and prisons, as of the mid-1990s, new court orders continued to be entered all over the country, and old orders continued to exert regulatory effect. Rather than a 1980s to 1990s decline, we see a long-standing plateau. Thus the conventional story of the demise of public law injunctions in the 1980s misses the continuing strength of injunctive practice during that time.

In 1996, however, Congress intervened. The Prison Litigation Reform Act (PLRA) made old correctional court orders harder for plaintiffs' counsel to sustain and new ones harder to obtain. The PLRA had a very notable constrictive effect on correctional court order practice. Even so, just as before, prison and jail court orders continue to be sought and entered; even now, ten years after passage of the PLRA, the civil rights injunction is more alive even in the prison and jail setting than the conventional wisdom recognizes. And by implication, in arenas in which no such congressional intervention has occurred, one might expect to see more continuity between court order practice now and in the 1980s.

Other revisionists have similarly suggested that structural reform litigation flourished in the 1990s and (putting the PLRA to one side) continues to thrive today. They have gone further, however, and argued that injunctive litigation remains very similar to that in the 1970s. As with the conventional wisdom, this revisionist story too is incorrect, at least for correctional court orders. Although, in prison and jail court orders, the 1980s and early 1990s did not see a decline in the incidence of regulation via order, there was in that time a transformation in civil rights injunctive practice from a kitchen sink model to something much more precise. I demonstrate this shift in the arena of prison orders, and suggest that it occurred less as a result of a top-down Supreme Court doctrinal dictate than of more diffuse forces, chief among them increasing skepticism about claims of causation more generally; the increasing prevalence of (pro bono) big firm lawyers in the cases; and the salience as models of a handful of cases in which the litigation was extraordinarily comprehensive.

In sum, I argue that contrary to prior accounts, civil rights injunctive practice did not die over the 1980s and 1990s, but was rather transformed. In its new form, however, injunctive practice flourished. In 1996, the PLRA shocked this stable system, causing a significant reduction in the volume of both new and old court order regulation in correctional settings. But there have not been any further notable shifts in injunctive practice's nature. At the end of the day, even in jail and prison litigation, the civil rights injunction remains stronger than conventional wisdom would have it.

I conclude with some policy implications. In particular, to some extent, progressive scholars and policymakers have thought it relatively low-cost to allow conservatives to attack injunctive litigation. After all, if something is already dead, why expend any political capital defending it? This is a point that has a good deal of relevance right now, as Congress considers the Federal Consent Decree Fairness Act proposed to implement restrictions similar to the PLRA's in other topical areas of governmental injunctive litigation. If this article is correct about prison and jail orders, the stakes of the proposed reform are probably extremely high; progressives should think long and hard before they allow this statute or others like it to pass without a strenuous fight.

jail, prison, civil rights, injunction, litigation, public law litigation, structural reform, PLRA, prison litigation reform act

Abstract:
Researchers have long used federal court data assembled by the Administrative Office of the U.S. Courts (AO) and the Federal Judicial Center (FJC). The data include information about every case filed in federal district court and every appeal filed in the twelve non-specialized federal appellate courts. The varied uses of the AO database have led to its being called "by far the most prominent" database used by legal researchers for statistical analysis of case outcomes. Like many large data sets, the AO data are not completely accurate. Some reports exist relating to the AO data's reliability, but no systematic study of the AO's non-bankruptcy data has been published. In the course of a substantive study of federal litigation brought by inmates, one of us began to investigate the nature and rate of errors, exploiting a technological innovation in federal court records: the availability of docket sheets over the Internet via the federal judiciary's Public Access to Court Electronic Records project (PACER). This Article follows a similar method to begin more comprehensively the process of assessing the AO data's reliability.

Our study looks at two large categories of cases, torts and inmate civil rights, and separates two aspects of case outcomes: which party obtained judgment and the amount of the judgment when plaintiffs prevail. With respect to the coding for the party obtaining judgment, we find that the AO data are very accurate when they report a judgment for plaintiff or defendant, except in cases in which judgment is reported for plaintiff but damages are reported as zero. As to this anomalous category (which is far more significant in the inmate sample than in the torts sample), defendants are frequently the actual victors in the inmate cases. In addition, when the data report a judgment for "both" parties (a characterization that is ambiguous even as a matter of theory), the actual victor is nearly always the plaintiff. Because such cases are quite infrequent, this conclusion is premised on relatively few observations and merits further testing.

With respect to award amounts, we find that the unmodified AO data are more error prone, but that the data remain usable for many research purposes. While they systematically overestimate the mean award, the data apparently yield a more accurate estimate as to median awards. Researchers and policymakers interested in more precise estimates of mean and median awards have two reasonably efficient options available. First, as described below, they can exclude two easily identified classes of awards with evidently suspect values entered in the AO data. Second, using PACER or courthouse records, they can ascertain the true award only in the suspect cases without having to research the mass of cases. Either technique provides reasonable estimates of the median award. The second technique may provide a reasonable estimate of the mean award, at least for some case categories.

litigation, administrative office, torts, inmate litigation, damages

Abstract:
This brief essay, which began as a comment on "A World Without Trials?", Marc Galanter's 2005 Annual Distinguished Alternative Dispute Resolution Lecture at the University of Missouri at Columbia, first summarizes recently acquired knowledge about American trial trends - in particular, the chief features we know about the shrinking civil trial docket in federal district courts. Next, it proposes four areas of future investigation necessary to understand the contours of the trend and to assess its causes. Then, I bring together the causal hypotheses that have already been proposed, none of which has yet been securely tested. Finally, in an appended bibliography, I list data sources, reports, and scholarly analyses that will be useful to those doing future work.

vanishing trial, litigation, empirical, trials

Abstract:
Potential defendants faced with the prospect of tort or tort-like damage actions can reduce their liability exposure in a number of ways. Prior scholarship has focused primarily on the possibility that they may respond to the threat of liability by augmenting the amount of care they take. Defendants (I limit myself to defendants for simplicity) will increase their expenditures on care, so the theory goes, when those expenditures yield sufficient liability-reducing dividends; more care decreases liability exposure by, simultaneously, making it less likely that the actors will be found to have behaved tortiously in the event of an accident and subsequent lawsuit and shrinking the probability and perhaps the severity of accidents. What prior scholarship has not focused on is that even contemplated behavioral changes - in the type rather than amount of care defendants take or the type rather than amount of harm they inflict - that do nothing to shift the probability or severity of accidents may in many circumstances limit expected liability by lowering the probability of claims or losses, or the expected amount of damages. In particular, potential litigation can induce potential defendants to favor more cognizable and demonstrable care, and less cognizable or demonstrable harm. Potential defendants should be expected to take advantage of myriad liability-minimizing substitution opportunities.

This paper, to appear in the DePaul Law School's Clifford Symposium, explores these opportunities. The points it makes fit in the general category of applications of the theory of the second best. That theory, foundational to modern welfare economics, if a bit under appreciated within law-and-economics, suggests that in economic systems that suffer from inconsistent or otherwise non-optimal features, correction of some subset of such features may well backfire. Similarly, I am suggesting that interventions in torts that fail to take account of the substitution opportunities I describe may have problematic consequences. But where many applications of the theory of the second best look extremely broadly at multiple markets and market participants, as well as the relevant legal frameworks, mine remains more manageably situated within torts as inflected by litigation processes.

torts, litigation, liability, second-best, constitutional torts, deterrence

Abstract:
For the vast body of information currently hidden in district court records to be socially useful, it cannot merely be warehoused. In Part I of this Article, we present an anti-warehouse model - the Civil Rights Litigation Clearinghouse, a new web-based resource built primarily around digitized court records, sponsored by Washington University in St. Louis. The Clearinghouse collects, indexes, and makes publicly available for research and observation a growing universe of civil rights cases and the settlements and court orders those cases have produced, which regulate government and private entities in myriad important ways. Because information in the Clearinghouse is easily and quickly accessible, fully indexed and searchable, and because the documents can be downloaded or copied, we are hopeful that it will transform the use of the included records.

The occasion for this discussion of our new web repository is that the National Archives is currently considering whether to keep or destroy huge portions of its voluminous collection of court records for cases since 1970. Its current regulation appears to embrace a view that historical court records are usually of only low or moderate value, insufficiently important to justify the resource allocation needed to preserve them all. In this brief article, we hope to demonstrate that this premise is incorrect. Court records have always been vital, and irreplaceable, sources for historical research. Made more accessible, as modern technology now allows and as our Clearinghouse demonstrates, court records can become central sources for much broader use for legal researchers; for historians, political scientists, sociologists, and anthropologists; for students and teachers; and for advocates and policymakers. It is the absence of good alternatives that makes court records so important. In Part II, we explain why other types of records cannot substitute for litigation files, discussing the shortcomings of other sources of information about litigation. Part III concludes by arguing, very briefly, that trial status is an inappropriate proxy for the importance of a given piece of litigation. Therefore, NARA's commitment to maintain the records of tried cases is not a satisfactory approach.

civil rights, litigation, courts, court records, internet, archives

Abstract:
This paper uses panel data estimation techniques to examine the relation between the number of federal court civil filings by inmates and jail and state prison populations (and, hence, the relation between jail and prison inmate filing rates) both before and after the effective date, in 1996, of the Prison Litigation Reform Act (PLRA). The research issue matters for several reasons. First, the amount of litigation by inmates is a crucial component of the regulatory regime governing jails and prisons and what factors drive filings, and by how much, deserves close attention and assessment. Second, the PLRA was a major congressional attempt to control and ration litigation; understanding its effects in finer gauge seems itself worthwhile. Third, we hope to show, methodologically, how research about litigation rates can be carried out sensitively, even if the litigation results from case filings by two separate populations. We make three major findings: (1) As expected, inmate filings vary positively with prison population. However, the relationship with jail population is less secure. (2) As the prison proportion of inmates in a particular state increases, so too does the number of filings. (3) The PLRA's passage has significantly lessened but not eliminated this prison proportion effect.

jail, prison, litigation, inmates, corrections, civil rights, PLRA

Abstract:
This essay, for an issue of Law & Contemporary Problems in honor of the work and influence of Marc Galanter, looks at a small case-type, jail strip-search litigation, and at its participants, to analyze its internal dynamics and what they have to teach us about the relation between litigation and society. Among the unusual features of these cases is that many different kinds of lawyers work on them - employees of public interest organizations; large law firm lawyers, often working pro bono, with a cooperating relationship with such a public interest organization; lawyers with a private prisoners' rights or police misconduct practice; and lawyers with a more varied or general class-action practice. The differences in lawyer type do not, however, demonstrably correspond to differences among case outcomes. However, interviews did surface some marked variation, by lawyer type, in the lawyers' orientations towards their own fees, the threat of adverse legal change, and the appropriate response to such a threat.

jail, civil rights, litigation, lawyers

Abstract:
The theory that the prospect of liability for damages deters risky behavior has been developed in countless articles and books. The literature is far sparser, however, on how deterrence is operationalized. And prior work slights an equally important effect of damage actions, to incentivize claims management in addition to harm-reduction responses that are cost - rather than liability-minimizing. This article works in the intersection of these two understudied areas, focusing on claims management steps taken by frequently sued organizations, and opening a window into the black box of deterrence to see how those steps may end up serving harm-reduction purposes as well. To summarize, I observe that damage actions regulate risky enterprise by inducing organizations to develop claims management capabilities - that is, the capacity to process any resulting disputes. I then argue that these claims management practices and personnel are sometimes used, secondarily but importantly, to improve safety, reduce risk, and increase compliance with external legal requirements. Organizations' internal claims management operations can, though they need not, facilitate care-taking in four important ways: (a) promoting the gathering and analysis of claims information; (b) requiring the hiring of specialized personnel with a mission to reduce claim payouts; (c) encouraging bureaucratized procedures that may be harm-reducing, and (d) increasing the salience of claims to various actors within the organization. I discuss the theory underlying these four points, drawing on organizational economics and sociology, as well as on psychology and behavioral law and economics. Then I discuss these four channels of influence in particular factual settings which serve as case studies, looking at a single large retailer, and then more generally at hospitals and hospital doctors, and jails and prisons. Because organizational theory tells us that this kind of transformation or repurposing is quite ordinary, the preliminary evidence I canvass suggests that claims management should be included in any study of how damage action deterrence is operationalized within large risk-creating organizations.

This article thus makes two chief scholarly contributions. It proposes and theorizes concrete operational paths by which damage actions may elicit organizational compliance with external norms. And it describes in-house claims management, a heretofore underobserved arena in which law influences organizational activity. In the conclusion, I propose that who performs claims management functions may matter, as well, and suggest that in future research, claims management should be considered along with liability and loss prevention as the trio of liability-related operational areas in which firms must implement a "make-or-buy" decision.

torts, hospitals, retailer, jails, prisons, risk management, claims management, deterrence

Abstract:
My aim in this article is to illuminate the common law of torts and its relation to and with ideas about gender difference, by focusing on three sets of cases involving injured women, spanning the time between approximately 1860 and 1930.

My conclusions run counter to two approaches scholars have frequently taken in analyzing gender and the common law of torts. Some tort scholars neglect gender completely, omitting it as an important axis of analysis. Other scholars, though not themselves erasing women or omitting gender, find that historical tort law itself committed a similar act of exclusion or subordination in the development of an objective standard of care. But notwithstanding the recent explosion in feminist torts scholarship, little scholarship actually examines and discusses old accident cases to test a hypothesis of exclusion and consistent oppression against their particular language and holdings. This Article essays such a test, using as the field of study three categories of cases, involving injuries to women who were passengers in cars and wagons, injuries to female drivers of wagons, and injuries to women boarding and disembarking from trains. Reported decisions in these categories evince common understandings of gender differences courts considered relevant: that wives had less authority than husbands, that women were less competent in the public sphere of transportation than men, and that women were less physically agile than men. This Article presents the interplay of those understandings and tort doctrine.

The results of this interplay were as complex as gender difference and tort law themselves, and my project is one of thick description - to complicate rather than to present a unified field theory of gender and tort. Nonetheless, one solid conclusion to be drawn from all three categories is that, as might be expected given the existence of female accident victims and the importance of the ideology of gender to social ordering, the accusation of erasure of gender difference is incorrect. Far from naively erasing gender by subsuming women into the male category of "reasonable men" or a purportedly neutral, but no less male category of "reasonable persons," courts actually treated gender as an important factor in assessing appropriate standards of care. Neither do the cases support a charge of invariable refusal to take account of women's experience, or of consistent deprecation of women's capabilities. Each of the three categories of opinions serves as a case study of tort law's intricate interaction with gender difference, illuminating the diversity of possible and actual legal approaches to thinking about women's agency, authority, and capabilities. Together, in rhetoric, analysis, and result, they present a world frequently, though not uniformly, friendly to women and their needs.

In the first set of cases, discussed in Part I, women were injured as passengers in cars and wagons, usually when their husbands were driving. During the entire period surveyed, the cases establish courts' views of the gendered relationship of wife to husband were of central analytic importance to their legal assessments of a woman's right to recover against a third party who caused an accident. Part I-A explains that although the cases display a relatively unchanging construction and presentation of the marital relationship B assigning the wife, at least in the public space of the roads, to a subordinate role to her husband B doctrinal changes from 1860 to 1930 precisely inverted the legal result of this assignment. In the early part of the period, courts concluded from women's subordinate position in marriage that a female passenger could not recover against a third party if her husband's driving had negligently contributed to the accident. But in 1890 or 1900, the results shifted, and courts concluded from the same subordination that a female passenger could recover in the same circumstances. Part I-B demonstrates additionally that courts deciding whether a female passenger had herself been contributorially negligent also considered gender norms relevant to the inquiry; the idea that female authority and competence was lessened in public spaces contributed to some courts' decisions that the injured women passengers before them had not been contributorially negligent.

Part II discusses a second set of cases, in which women drivers of wagons were injured. Some nineteenth-century court decisions in this category acknowledged and treated a perceived gender difference - that women were inferior drivers to men. These opinions examined numerous doctrinal possibilities for the role gender should play, but settled on none of them, showing that a particular shared understanding about gender does not answer the question of how gender should bear on the injured female tort plaintiff's right to recover. Later opinions dealing with female drivers, by contrast, generally did not discuss gender at all.

Part III presents a third and final set of cases, in which women were injured boarding and disembarking from trains. Underlying these decisions was yet another, and related, shared understanding of a gender difference B that women had more difficulty than men negotiating the world of train and streetcar travel. Here, the defendant railroads' legal status as common carriers framed how judges incorporated perceived gender difference into their analysis. As in the first set of cases, though not the second, as courts in this third category repeatedly confronted the perceived difference of women from men, and decided whether and how to accommodate that difference, some particularized rules and a fairly consistent caselaw developed. In a contextual analysis that was not quite feminist, but not anti-feminist either, courts were more likely to invite women into public spaces and to enforce access rules for them than to exclude them, and were more likely to treat women as adults with adult capabilities and responsibilities of self-care, than as children unable to take care of their own safety.

Although their facts otherwise vary, the three sets of cases do share one obvious factual feature B all involve transportation-related injuries. This focus on transportation reflects early tort law's similar focus rather than any claim that gender was at issue only in this subset of personal injury cases. And of course, courts also discussed gender in cases that did not involve accidents at all. Divorce cases, rape cases, cases about such gendered torts as seduction or alienation of affections C all were among the arenas in which lawyers and courts discussed women and the law's relationship to and expectations for them. This Article presents just one piece of the puzzle.

gender, torts, women, reasonable man, reasonable woman, feminism

Abstract:
Prisons and jails pose a significant challenge to the rule of law within American boundaries. As a nation, we are committed to constitutional regulation of governmental treatment of even those who have broken society's rules. And accordingly, most of our prisons and jails are run by committed professionals who care about prisoner welfare and constitutional compliance. At the same time, for prisons -- closed institutions holding an ever-growing disempowered population -- most of the methods by which we, as a polity, foster government accountability and equality among citizens are unavailable or at least not currently practiced. In the absence of other levers by which these ordinary norms can be encouraged, lawsuits, which bring judicial scrutiny behind bars, and which promote or even compel constitutional compliance, accordingly take on an outsize importance. Unfortunately, over the past twelve years, it has become apparent that a number of provisions of the Prison Litigation Reform Act ("PLRA") cast shadows of constitutional immunity, contravening our core commitment to constitutional governance. The PLRA's obstacles to meritorious lawsuits are undermining the rule of law in our prisons and jails, granting the government near-impunity to violate the rights of prisoners without fear of consequences. Amendment is urgently needed.

In recent months numerous advocates and organizations have urged reform. Indeed, a bill offered in the last Congress, the Prison Abuse Remedies Act of 2007, would offer some moderate fixes to the most pressing problems created by the PLRA. In this Article, we discuss three of these problems. First, the PLRA's ban on awards of compensatory damages for "mental or emotional injury suffered while in custody without a prior showing of physical injury" has obstructed judicial remediation of religious discrimination, coerced sex, and other constitutional violations typically unaccompanied by physical injury, undermining the regulatory regime that is supposed to prevent such abuses. Second, the PLRA's provision barring federal lawsuits by prisoner plaintiffs who have failed to comply with their jails' or prisons' internal grievance procedures -- no matter how difficult, futile, or dangerous such compliance might be for them -- obstructs rather than promotes constitutional oversight of conditions of confinement. It strongly encourages prison and jail authorities to come up with ever-higher procedural hurdles in order to foreclose subsequent litigation. Third, the application of the PLRA's limitations to juveniles incarcerated in juvenile institutions has rendered those institutions largely immune from judicial oversight because so many young people are not able to follow the complex requirements imposed by the statute, and compliance by their parents or guardians on their behalf has been deemed legally insufficient. Each of these three problems disrupts accountability and enforcement of constitutional compliance.

PLRA, prison, jail, civil rights, litigation

Abstract:
In my first-year torts class, I ask my students to consider what tort law might look like if it treated a defendant's or plaintiff's gender as relevant to jury assessment of due care. What, that is, would it mean for the law to talk about reasonable women as well as men? This short article discusses some supplemental materials I use to teach this gender issue.

Perhaps the most interesting point that emerges is that where care is synonymous with skill, and women are thought to be less skilled than man, a reasonable woman standard might allow women to escape liability more easily than men. But often, care is actually caution. In that situation, far from privileging women's position or perspective, a "reasonable woman" standard, notwithstanding its rhetorical appeal, frequently enforces as well as reflects a masculine vision of female dependence and fragility.

torts, feminism, gender, reasonable man, reasonable woman

Abstract:
Malcolm Feeley and Edward Rubin's history and analysis of prison reform litigation, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons, uses the first fifteen years of systemic prison reform litigation as both context and source for a theoretical description and legitimation of a judicial activity they contrast to interpretation and label policymaking - the process by which [judges] exercise power on the basis of their judgment that their actions will produce socially desirable results.

In this review essay, I argue against Feeley and Rubin that institutional reform litigation is not a judicial movement but a political practice. The history of litigated prison reform reveals it to be an intricate set of interactions framed by the rules of litigation and involving many groups, with varying roles, interests, and constraints. Feeley and Rubin's theory, however, almost exclusively concerns the sole institution of the judiciary, and even more narrowly, the judicial activity of doctrine creation. Feeley and Rubin ask a question of the prison cases - How do judges make policy - that the cases cannot answer. They do not engage the more interesting and more appropriate question: How do courts function as an arena of policy disputation?

I begin with a brief history of litigated prison reform and a summary of Feeley and Rubin's theory. Then I discuss two topics vital to understanding the cases, but omitted from the book - settlement, and the varying interests and strategies of different prisoners' lawyers. The review concludes by calling for renewed scholarly examination of institutional reform litigation, which remains a regular and important component of the interaction between the court system and the executive and legislative branches of state and local governments. How courts began, and whether they continue, to be an arena for such litigation; how the litigation looks; and whether it succeeds or fails are functions not simply of judicial will and role, but of the goals, resources, and actions of many groups and actors, filtered through the rules of litigation. If scholars are going to be useful observers and analysts of this universe of cases, we must free ourselves from our long-bred urge to talk only about judges and open our eyes instead to the full range of participants and forces at work.

prison, courts, institutional reform litigation, structural reform, civil rights

Abstract:
In 1995, prison and jail inmates brought about 40,000 new lawsuits in federal court - nearly a fifth of the federal civil docket. Court records evidence a success rate for inmate plaintiffs under fifteen percent. These statistics highlight two qualities long associated with the inmate docket: its volume and the low rate of plaintiffs' success. Then, in 1996, Congress enacted the Prison Litigation Reform Act (PLRA), which dramatically altered the litigation landscape, restricting inmates' access to federal court in a variety of ways. This Article examines inmate litigation before and after the PLRA.

Looking first at the litigation process itself, it brings together prior research, the results of new quantitative analysis of a comprehensive database of federal district court cases, and interviews and other qualitative inquiry. The Article canvasses filing trends, subject matter, and settled and litigated outcomes, exploring what is happening in each of these areas and why. Then it uses a variety of analytic tools to uncover and assess the PLRA's impact. Most obviously, the PLRA has shrunk the number of new federal filings by inmates by over forty percent, notwithstanding a large increase in the affected incarcerated population. Simultaneously, the statute seems to be making even constitutionally meritorious cases harder both to bring and to win. Finally, the Article looks beyond federal courthouses to the ways litigation affects jail and prison operations. Specifically, it explores agencies' efforts to respond efficiently to the high-volume, low-probability docket and to reduce their liability exposure, and offers some tentative observations about the PLRA's likely impact on these efforts. The Article suggests in conclusion that use of the PLRA as a model for broader litigation reforms should proceed with enormous caution given the statute's problematic effects.

prison, jail, corrections, litigation, inmate litigation, civil rights litigation, pro se litigation, tort reform, prison litigation reform act