23 Pages Posted: 26 Feb 2009 Last revised: 22 Jun 2009
Date Written: 2005
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: 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