Judicial Hellholes, Lawsuit Climates, and Bad Social Science: Lessons from West Virginia

Abstract

The American Tort Reform Association (ATRA) was founded in 1986 by the American Medical Association and American Council of Engineering Companies, and now has hundreds of corporate members. Every year, ATRA releases a list of Judicial Hellholes: court systems alleged to be unfair to defendants. The name is definitely catchy: the thought of a judicial hellhole invokes images of Kafka, Satan and the Queen of Hearts. No wonder ATRA's hellhole campaign has embedded itself in media vocabulary. And no wonder state courts and state legislatures bend over backwards to get out from under the hellhole label. Similarly, the U.S. Chamber of Commerce has a spin-off organization,the Institute for Legal Reform, that issues an annual report on each state's lawsuit climate, ranking states from 1 to 50 on their friendliness to business, based on a survey of general counsel of very large businesses and their outside lawyers. Since no state wants to be found near the bottom of the list, the ILR report also creates pressure for legal change.

This essay uses West Virginia as a test case to examine the methodology of the Hellhole and Lawsuit Climate reports. It provides context by briefly tracing the earlier campaigns of tort reform advocates, highlighting some of the ways in which they have played fast and loose with numbers and stories. The essay describes the national Hellhole and Lawsuit Climate campaigns, and then focuses on ATRA's treatment of West Virginia in order to demonstrate the techniques of the hellhole reports. For example, the reports represent opinions as facts, use quotations and anecdotes in a misleading and manipulative way, omit bad facts, and misuse statistics.

Reasonable scholars on all sides of the substantive and procedural issues involved in tort litigation have debated and will continue to debate difficult issues such as deterrence, insurance, proof of causation, procedural efficiency, the role of the courts, the limits of science, and best choice of decision maker. The hellhole reports add nothing to these thoughtful and nuanced debates; indeed, they debase that debate by misleading and misinforming citizens and lawmakers.

Keywords: judicial hellhole, lawsuit climate, tort reform, medical monitoring, mass tort, joinder, forum non conveniens, rhetoric, lawsuit crisis, empirical data

JEL Classification: K41, K13, K4, K40