26 Pages Posted: 29 Nov 2005
Date Written: November 23, 2005
Archival information about the legal system should inform policymaking. Despite claims of soaring civil damages awards, modern historical data show no little growth in tort awards and no real growth in punitive damages awards. The data also show a dramatic 40-year decline in trial rates from over 10 percent of case dispositions to less than two percent. The decline needs to be explained in part by using archival data. Contrary to perceptions underlying the Class Action Fairness Act of 2005, little systematic evidence exists that state and federal courts process class actions significantly differently. These results contradict the publicity campaigns and empirical studies generated by parties with policy agendas. If society does not preserve accurate information about the legal system, and promote the information's analysis and dissemination, questionable analysis will be supplied to suit the policy agendas of special interest groups. Society would not consider making economic policy being without systematic knowledge of past economic experience. It would not consider making health care policy without systematic knowledge of past pandemics, epidemics, successful health campaigns, or toxic incidents. Society should demand no less before making legal policy.
Keywords: civil justice, trials, juries, class actions, torts
JEL Classification: K10, K13, K41
Suggested Citation: Suggested Citation
Eisenberg, Theodore, Use It or Pretenders Will Abuse it: The Importance of Archival Legal Information (November 23, 2005). Cornell Legal Studies Research Paper No. 05-035. Available at SSRN: https://ssrn.com/abstract=855385 or http://dx.doi.org/10.2139/ssrn.855385