Explaining the American Norm against Litigation

23 Pages Posted: 26 Feb 2009 Last revised: 22 Jun 2009

Shawn Bayern

Florida State University - College of Law

Date Written: 2005

Abstract

In the United States, a social norm discourages people from vindicating at least some of their rights in court. However, if courts are an instrument of justice and of sound public policy -- for instance, if they provide fair compensation for injured parties and efficient incentives for potential injurers -- then a norm against using courts is puzzling.

This Comment explores and evaluates explanations for the norm against litigation; the Comment's goal is to provide a plausible account of the norm. Accordingly, the Comment is largely descriptive, but normative implications may follow from my exploration; for instance, to the extent that an explanation of the norm is plausible, the explanation may help to frame the debate about tort reform in the United States.

The Comment serves also as a test of prominent "law and social norms" theories; for example, reductions of social norms to signal-based theories are shown to fail to account for the norm against litigation.

Keywords: law and social norms, litigation, justice, efficiency, mercy, courts

JEL Classification: K10, K41

Suggested Citation

Bayern, Shawn, Explaining the American Norm against Litigation (2005). California Law Review, Vol. 93, p. 1697, 2005; FSU College of Law, Public Law Research Paper No. 350; FSU College of Law, Law, Business & Economics Paper No. 09-09. Available at SSRN: https://ssrn.com/abstract=1347484

Shawn J. Bayern (Contact Author)

Florida State University - College of Law

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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