How to Manufacture a Crisis: Evaluating Empirical Claims Behind 'Tort Reform'

Abstract

Empirical claims about the operation of the civil justice system have received widespread media coverage and attention from politicians for over 30 years. Today it seems beyond question that that civil litigation is “exploding”; damage awards are “skyrocketing;” juries are “out of control; citizens file suit at the drop of a hat; “frivolous” claims are expanding. The media and political campaign for “tort reform” has proven enormously successful: every state and the federal government have adopted significant legislation “reforming” tort rules and civil justice practice. Scores of additional “reforms” are under consideration, including by the Obama administration. Meanwhile, cover stories from major newsweeklies trumpet the ongoing success of the tort reform campaign. For example, the Business Week cover story on January 8, 2007 is entitled, "How Business Trounced the Trial Lawyers."

This article analyzes key empirical claims made by "Business" concerning the operation & impact of the civil justice system. These claims have deep roots: Most of the rhetorical frames described above have been deployed for at least 30 years. The article systematically reviews the factual basis of claims for “tort reform.” Evaluating scores of empirical studies conducted over 3 decades, I show that most of the credible evidence contradicts the empirical claims of the tort retrenchment movement. If the empirical evidence supporting tort reform is faulty, what is left of the case for further retrenchment of the civil justice system?