Adversarial Legalism and Civil Litigation: Prospects for Change

REVIEW SYMPOSIUM on Kagan’s Adversarial Legalism: The American Way of Law

Adversarial Legalism and Civil Litigation: Prospects for Change

Joseph Sanders

ROBERT A. KAGAN. Adversarial Legalism: The American Way of Law. Cam- bridge: Harvard University Press, 2001. Pp. xii + 339. $49.95 cloth.

A. CURRENT EVENTS

Rarely does a week go by in the United States without a news report of a tort claim. The stories nearly always involve commentary from individuals who either decry or applaud the development. Examples abound. In the forefront this past summer were stories concerning medical malpractice. For example, the Washington Post published a story concerning the closing of the only medical trauma center in Las Vegas, Nevada, occasioned “by the mass resignation of dozens of surgeons, who say the soaring cost of malpractice insurance and lawsuits threatened their livelihoods” (Booth 2002, A2). The story reported that emergency rooms around the nation were closing and doctors were withdrawing from similar types of practice because of the costs of lawsuits.

Casting the resigning doctors in the role of victims, John Fildes, a sur- geon and the director of University Medical Center said, “We want to be here, that’s the sad thing. These physicians want to take care of patients, but they are withdrawing from high-risk activities to protect their families and livelihoods.” Not surprisingly, plaintiff’s personal injury lawyers had a different view. “They just wanted to terrorize the community with this walk- out,” said Jim Crockett, a Las Vegas lawyer. “These doctors are holding this community hostage.”’

Joseph Sanders is A. A. White Professor of Law, University of Houston Law Center. 1. The act did seem to have political as well as economic motivations. The story went

on to report that, “the surgeons are demanding that the Nevada legislature pass major tort reform, including protection similar to California’s Medical Injury Compensation Reform Act

0 2003 American Bar Foundation. 0897 -6546103 12803 -7 19$10.00 719

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The paper contained a typical mix of stories about other claims as well. “Forest Service Sued over Backfire,” reported on a group of Montana home- owners suing the United States Forest Service under the Federal Tort Claims Act. The Service’s firefighters started a backfire in an effort to control a forest fire; and the plaintiffs claimed that the backfire itself burned their homes to the ground. Not surprisingly, firefighters fretted over the consequences of a successful suit.2 Another story, “Profiting from Apartheid,” reported on the imminent beginning of a class-action suit against companies that did business in South Africa during the apartheid years. Again, defendants are quoted about the chilling effect of such litigation (Tisch 2002, A8).

B. ADVERSARIAL LEGALISM

As far as I can tell, not one of these stories cited Robert Kagan’s excel- lent book Adversarial Legalism. Nor did they use this phrase to give a name to the events they were describing. Each story, however, is an example of the topic of his book. They exhibit adversarial legalism’s two central characteristics: fomal legal contestation (“competing interests and disputants readily invoke legal rights, duties, and procedural requirements, backed by recourse to formal law enforcement, strong legal penalties, litigation and/or judicial review”) and litigant activism (“astyleoflegal contestation in which the assertion of claims, the search for controlling legal arguments, and the gathering and submission of evidence are dominated not by judges or government officials but by disputing parties or interests, acting primarily through lawyers”) (p. 9). Kagan argues that these two characteristics are associated with and are partly the product of “decision making institutions in which authority is fragmented and in which hierarchical control is relatively weak” (p. 9).

As this definition indicates, there is much more to adversarial legalism than stories of civil litigation, and Kagan’s book is about adversarial legalism in all its forms. It includes chapters on criminal law, regulation, welfare, economic development, and environmental protection. Civil litigation in general and tort litigation in particular may not be at the core of adversarial legalism, but few would disagree that it is here where the phenomenon most frequently enters into and affects our everyday consciousness.

(known as MICRA), which places limits on attorney fees and jury awards to patients for pain and suffering.” And the governor promised to call a special session of the Nevada legislature to address tort reform. Later in the summer the legislature did in fact pass a tort reform bill that contained a $350,000 cap on pain and suffering damages (Lawmakers Praise Tort Reform 2002, 4)

2. “Are we going to second-guess suppression tactics that result in the loss of private property?” said Kathy McAllister, deputy regional forester in the service’s Region 1, in Mis- soula, Mont. “We’d start to find ourselves more and more reluctant to take action on private lands. I believe our ability to effectively suppress fires will be compromised if our incident

Adversarial Legalism: Prospects for Change

There are several reasons why this is so. As Kagan notes, in many other areas, including family law, employment law, and business law, wealthier and more sophisticated parties have found ways to evade the costs and uncertainties of civil litigation by avoiding jury trials or, where possible, avoiding trials altogether, often by including mandatory arbitration clauses in their contracts (p. 123) (see Syverud 1997, 1943; Lande 1998; Erlanger, Chambliss, and Melli 1987).

Because evasion is much more difficult in tort cases, defense groups, from physicians to pharmaceutical companies to automobile manufacturers, repeatedly turn to legislatures seeking relief from what they perceive to be the costs and uncertainties of the tort system. This agenda has politicized tort law to a greater degree than nearly any other area of law (Flemming 1998). Waves of “tort reform” have occurred in nearly every American jurisdiction since the 1970s (Sanders and Joyce 1990; Daniels and Martin 2000).

And if all of this were not enough, there is something more. The popu- larity of newspaper stories reporting true and apocryphal tales of tort litigants bringing apparently frivolous suits attests to the deep-seated interest in torts as a cultural play.3 Like all good plays, the cases may be understood at more than one level, for each suit is not only about the merits of the plaintiff’s claim but also about the merits of using the legal system as a forum for resolving the issue: The result is that tort law is a lightening rod for much of the debate about adversarial legalism.

Of course, only the academics read these stories and say, “Aha another example of adversarial legalism!” But others notice, and, if we are to believe public opinion surveys, most shake their head with a mixture of exasperation and annoyance at law and lawyers. Others may mutter, “It’s about time.”5 No matter what our reaction, however, it is often accompanied by a certain sense of inevitability about the whole business. Whether we approve or dis- approve of a particular lawsuit, most people believe that this is just the way things are.

In the remainder of this essay, I use these cases and others discussed in Kagan’s book to add my perspective on two questions that are at the

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commanders or crew bosses are worried about being sued if they make a decision that ulti- mately results in private property losses” (Matthews 2002, A13).

3. See Engel ( 1984) (examining the cultural tensions surrounding perceived litigiousness in one Midwest county); Bailis and MacCoun (1996).

4. One of the more recent examples is the litigation seeking reparations for slavery. See Three Big Companies Named in Slave Reparations Suit 2002. For typical commentary that discusses both the merits of the suit and the merits of litigation as a means to obtain reparations, see Seeking Justice for Slavery’s Sins 2002; Reparations Issue Is a Smoke Screen and a Shakedown 2002.

5. More intriguing, I suspect most people will express both views, depending on which story they are reading. Even as breakfast table voyeurs, our views are contradictory. As Ewick and Silbey (1998) would put it, people are both “with” and “against” the law.


center of the book. The questions are: What are the problems with adversarial legalism? Why is it, nevertheless, such a stable feature of our legal system?

C. THE PROBLEMS WITH ADVERSARIAL LEGALISM

Why are the cases discussed at the beginning of this essay newsworthy? Not simply because they are examples of adversarial legalism, for that is true of many if not all tort claims. These stories offer something more. According to their critics, they are examples of the central problems with adversarial legalism. Nearly all the cases are newsworthy precisely because, according to some people quoted in the story, they allegedly involve one or both of the two negative characteristics Kagan associates with adversarial legalism: its costliness and its legal uncertainty.

costs

Costs are a tricky thing to measure and it would be helpful if we had a metric against which we easily could compare, for example, the total costs of dispute resolution in a European inquisitorial context with the costs of dispute resolution in the American context. Unfortunately, neither Kagan nor anyone else has such data. In its absence, Kagan constructs a plausible argument about why adversarial legalism is a relatively costly form of dispute resolution.

If American dispute resolution is more costly, this might be due to two factors. First, a larger percentage of disputes may be resolved through relatively more expensive formal legal processes rather than informal processes. Second, formal legal processes themselves may be relatively more expensive within a regime of adversarial legalism.

Kagan’s book has relatively little to say about the first possibility, but it is not his fault, for we are stymied by a lack of data. To understand why, it is useful to imagine a dispute At the bottom of the pyramid are the underlying events that may lead to a dispute, for example, car wrecks, botched surgical procedures, defective products. Some of these events become disputes, some disputes move up the pyramid to become claims, some claims become lawsuits; at the top of the pyramid, some lawsuits are tried, and some of those are appealed to higher courts. Often we do not know

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6. The term came out of the Civil Litigation Research Project at the University of Wis- consin. See Felstiner, Abel, Sarat (1980); Trubek et al. (1983). Since then, a number of articles have commented on the fact that we know nearly nothing about incidence rates at lower levels of the pyramid, usually in the context of debunking the claims of others about the meaning of changes at the top of the pyramid. See Sanders and Joyce (1990); Saks (1992); Galanter (1996).


either the frequency of the underlying events or the transition rates from one level of the pyramid to the next. In the present situation, we do not know what percentage of all disputes are settled by formal legal contestation versus other, informal methods. Even if we knew these rates, we would still need to assign a cost to litigation versus other forms of dispute resolution such as mediation and arbitration. This itself, is not a topic without controversy (Hensler, 2001).

Kagan does a better job documenting how adversarial legalism may raise the costs of litigation. Most important, the system is lawyer dominated, not judge dominated. Lawyers expend substantial resources on discovery and pretrial depositions. Much of the ground covered at this stage is reprised when the witnesses appear in court. Indeed, too often lawyers with more resources or with a wealthier client use discovery as a way of increasing the opponent’s costs.

The fact that the system is lawyer dominated also increases the cost of expert witnesses. Unlike the continental system, in which the court usually appoints experts, in the United States every expert must be countered by an opposing expert. Moreover, many lawyers retain consulting experts, who may help them prepare a case away from the prying eyes of the opponent. The cost of experts alone is sufficiently high that many individuals with meritorious products liability and medical malpractice claims cannot find representation because even were they to prevail the expected award would not cover the litigation expenses.

Another source of costs is the all-at-once trial that is typical in the United States. In most European countries, the norm is the episodic trial that takes place in short pieces over a period of time. If, in the course of an episodic trial, some issue becomes important, the lawyers can present additional evidence on that point later in the proceedings. But in a system where the trial is a single event, one must prepare for every contingency in advance, again raising costs. The one-shot trial, is, of course, necessitated by the use of civil juries. One cannot ask jurors to come for a day, take off a month, return for a day, and so forth as would be required if trials were episodic. Among developed countries, this civil jury is an uniquely Ameri- can institution.

Juries impose other costs as well. On average, jury trials take longer than bench trials. In some jurisdictions, jury selection alone can add half a day to trials (p. 107). Moreover, because jurors typically cannot ask questions, the lawyer cannot be certain what part of the case is crucial and to “play it safe” may call “extra” witnesses. In high-stakes cases, it is not uncom- mon for the parties to try their cases to “shadow juries” in order to obtain a better sense of the strengths and weaknesses of their case.

Judged as a compensation system, the tort regime is very inefficient. Several studies suggest that only a fraction of every dollar paid by defendants

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is received by plaintiffs (p. 137). Overhead costs vary substantially depending on the subject of the lawsuit, but on average perhaps 50 cents out of every dollar goes to transaction costs, mostly to attorney’s fees.

Unpredictability

Both the firefighter and the apartheid suits discussed at the beginning of this essay reflect a concern that the uncertainty of outcome will have a chilling effect on behavior. Uncertainty has many sources, a point made clear by Kagan’s discussion of the well-known case of T e m o v. Pennzoil. After Pennzoil and Getty Oil negotiated the sale of three-sevenths of Getty’s stock for $112.50 a share, but before the deal was finalized, Getty accepted a separate offer from Texaco to buy all of the outstanding shares of Getty for $125 a share. Pennzoil, with its headquarters in Houston, originally sought an injunction against Getty in Delaware chancery court, but later dropped the claim and refiled in state court in Houston.’ There, a Texas jury awarded Pennzoil $7.5 billion in compensatory damages and an additional $3 billion in punitive damages.

Kagan notes that Texaco’s lawyers had advised their client prior to its negotiations with Getty that Getty Oil was “free to deal.’’ He asks, “How could a sophisticated company such as Texaco, with its cadre of experienced attorneys and investment bankers, fail by such a wide margin to discern the legal risks to which it was exposed?” His answer is that predicting outcomes is particularly risky business in a legal system constantly being shaped and reshaped by adversarial arguments. The uncertainty surrounding litigation outcomes is partly due to the nature of the judiciary, which, when compared to its counterparts in other developed countries is both more political and less subject to bureaucratic oversight.8 Kagan notes that the trial judge in the Pennzoil case said afterward that, “there is a good chance that perhaps I read the cases wrong.” Given the political reality of an elected judiciary, perhaps it is not surprising that the trial judge adopted Pennzoil’s proposed jury instructions nearly verbatim and the Texas Court of Appeals affirmed the Texas jury. I t is worth noting, however, that Texaco quickly moved to have federal courts in New York intervene in the state court action and that both a New York based federal district court and the Second Circuit Court of Appeals issued opinions favorable to New York-based Texaco.’ Unfortunately for Texaco, when the case reached the United States Su-

7. Texaco could not remove the case to the federal courts under the diversity jurisdiction because both Texaco and Pennzoil were Delaware corporations (Weyrauch 1999, 1234).

8. In many countries, the judiciary is a career path chosen by individuals at the beginning of their career, and an individual’s career advancement is contingent upon performance that is graded by those in charge of the judicial bureaucracy. See Jacob et al. (1996).

9. See LoPucki and Weyrauch (2000) for a useful discussion of the strategic moves by both sides in this litigation.


preme Court, on the question of whether Texaco would have to post an $1 1 billion bond in order to pursue an appeal of the Texas verdict, the court sided with Pennzoil.” Texaco chose to declare bankruptcy to avoid posting the bond. Shortly thereafter, it agreed to a settlement of the case for approxi- mately $3 billion. The fact that the New York federal judiciary was just as supportive of Texaco’s position as the Texas state judiciary was of Pennzoil only confirms Kagan’s point that, when asked their opinion about the proba- ble outcome of a case, American lawyers, unlike their European counterparts, want to reserve judgment until they know who the judge will be.

Judges were not the only source of uncertainty in the case. So, too, was the jury. Pennzoil v . Texaco can be understood as an example of how elite legal opinions and everyday lay opinions may vary.

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Legal and financial experts on the Eastern Seaboard favored the view that preliminary steps to a merger, even if they are in contractual form, are conditional and do not preclude later acceptance of better offers from third parties, such as Texaco. Trade custom in the large commer- cial centers of the East assumes that prospective mergers are primarily concerned with maximizing shareholder benefits and are therefore open to competing offers until the deal is finally closed. . . .

To the Texas jury a handshake is a handshake, regardless of what New York law and corporate experts might say. Jurors’ pronouncements after the verdict made this quite clear. In his published report, former juror James Shannon wrote, “[als a jury, I believe we were unwilling to accept the idea that different standards of justice apply, depending on what state you’re in and how much money you have.” The jury

10. PennToil Co. e . Texaco, 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). In a fascinating concurring opinion, Justice Marshal1 made the following comment con-

As Justice Holmes observed: “Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” Northern Securities Co. v. United States, 193 US. 197,400,24 S.Ct.436,468,48 L.Ed. 679 (1904) (dissenting opinion). The history of this lawsuit demonstrates that great sums of money, like great cases, make bad law. Because a wealthy business corporation has been ordered to pay damages in an amount hitherto unprecedented, and finds its continued survival in doubt, we and the courts below have been presented with arguments of great sophistication and complexity, all Concerned with a case which under clearly applicable principles should never have been in the federal courts at all. The Court’s opinion, which addresses in sweeping terms one of these questions, is the result of what Justice Holmes called “a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.” Id., at 401, 24 S.Ct., at 468.

Had the sole proprietor of a small Texas grocery sued in the Southern District of New York to enjoin the enforcement of the Texas bonding provision in order to facilitate appeal in Texas from a state-court judgment in the amount of $10,000, the result below would surely have been different, even if inability to meet the bonding requirement and to stay execution of judgment meant dissolution of the business and displacement of employees. The principles which would have governed with $10,000 at srake should also govern when thousands have become billions. That is the essence of equal justice under law. I concur in the judgment of the Court. (481 U.S. 26-27)

cerning the case:


foreman Rick Lawler stressed, “[wle won’t tolerate this sort of thing in corporate America. . . .”

While the financial experts on mergers and the corresponding legal experts submitted by Texaco were in basic agreement on the legality of the transaction, there seems to have been little serious question in the minds of the jury that Texaco’s behavior was morally blameworthy. (Weyrauchi 1999, 1233-35)”

The point is hardly unique to this litigation. As Max Weber noted long ago, the jury is a pocket of substantive rationality in a formal-rational legal system (Trubek 1972). From this perspective, Pennsoil v. Texuco is an example of partial jury nullification.

Most of the time, however, jurors are not about the business of substi- tuting their judgment for the law’s. They attempt to follow judicial instructions and to apply the law to the facts. Whether this results in predictable verdicts is a matter about which there is a fair degree of disagreement. Jury verdicts are not purely random events (pp. 115-16). “Better” cases from the point of view of lawyers, judges, and other experts are more likely to be won than are “worse” cases. More seriously injured plaintiffs who prevail at trial are, on average, awarded more money than less seriously injured plaintiffs. However, the correlation between jury outcomes and the assessments of others, such as claims adjustors or physicians, is not high.” It is also true that even when we control for the merits of the case or the seriousness of injury there is substantial variation in jury verdicts and damage awards (Sanders 1998; Sloan et al. 1993; Vidmar, Gross, and Rose 1998). This is especially true with respect to punitive damage awards.I3

Because of the emergence of mass torts, we are provided a window into how actual jurors decide cases that are identical or nearly so. Green reports the results of a multiplaintiff asbestos case where five juries simultaneously heard the same case. The juries arrived at substantially different answers to

11. A similar point is made in Ansaldi (1990). 12. With respect to outcomes, see, for example, Taragin et al. (1992). This study com-

pared jury verdicts on liability against the judgment of negligence made by the insurance company’s physician evaluator. The correlation between the verdicts of the evaluators and juries was statistically significant. Plantiffs won 21 % of the cases the evaluators rated as “defen- sible” (i.e., the defendant’s behavior was not negligent), 30% of the unclear cases, and 42% of the “indefensible” cases.

In a more recent study, Laing (1997) gave 11 anesthesiologists in a primary teaching hospital of Harvard Medical School the facts of 12 malpractice cases involving an anesthesiol- ogist defendant. In two separate surveys they were asked to assess whether the defendant failed to exercise due care, and these results were compared to actual jury verdicts in the 12 cases. Combining all cases, physician agreement with jury verdicts on the first survey was 58% and on the second survey was 56%. With respect to the size of damage awards, see Danzon (1985); Bovbjerg, Sloan, and Blumstein 1989.

13. Sunstein, Kahneman, and Schkade (1998); Schakade, Sunstein, and Kahneman (2000). As is the case with respect to liability and compensatory damages, scholars frequently disagree as to how predictable punitive damages are. See Eisenbetg et al. (1997); Polinsky (1997).


a set of specific questions relating to causation and liability. For example, when asked when the defendants first became aware of the dangers of asbestos, the responses ranged from 1934 to 1964 (Green 1984). I examined more than 20 jury deliberations to a verdict in the litigation concerning Bendec- tin, a morning sickness drug. Twelve juries found for the defendant, and nine for the plaintiff (Sanders 1998). Were the Bendectin cases very close on the merits, this outcome could be explained as a normal distribution around a mean of uncertainty. However, the substantial weight of the scientific evidence failed to support a causal relationship between the use of Ben- dectin and injury to the user’s fetus. The Bendectin cases involved relatively complex scientific questions, and there is some evidence that such cases present special problems for juries (Special Committee 1989).

It would be unwise to view this uncertainty simply as a function of individual juror incompetence. As David Schkade notes, were one to orga- nize a task such as assessing damages one might do the following: (1) hire the best people; (2) give them good training; ( 3 ) give them correct and relevant information; (4) given them incentives to perform well. On the contrary, the civil jury operates in an environment where: (1) decisions are made by low-paid, randomly selected individuals, of whom some of the most knowledgeable are often filtered out during the voir dire process; (2) there is little training about how to do the job, and the instructions that are provided are vague principles; ( 3 ) useful information is often missing, including information about what other juries may have done in similar cases; and (4) there are no performance-based incentives for doing well or any external accountability for a poor effort (Schkade 2002).

It is the process as much as the decision maker that produces uncertainty. Indeed, a number of studies have shown that lawyers and judges also have difficulty assessing the value of cases (p. 116).14 For example, Vidmar and Rice asked jurors and lawyers to assess pain and suffering damages in a case of a female patient who suffered a severe burn on the knee, resulting in a permanent large, disfiguring scar. Both jurors and lawyers provided a similar mean estimate, but among groups there was considerable variance. In the case of jurors, awards ranged from $11,000 to $197,000. Among lawyers the range was less but still significant, from $22,000 to $82,000 (Vidmar and Rice 1993).

One interpretation of such results would be to say, “see lawyers and judges have difficulty as well.” Kagan notes, however, that another interpretation is that any “legal system in which the average lawyer is poor at predicting outcomes, for whatever reason, is an unpredictable legal system” (p. 116).

As is the case with costs, uncertainty is itself a relative thing. The

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14. Some of the studies are summarized in Galanter (1993). See also Kritzer (1990); Oshorne (1999).


appropriate question is not whether legal outcomes are uncertain but rather whether the uncertainties associated with adversarial legalism are greater than those found elsewhere. In this regard, Kagan performs the very useful service of comparing the American system to the legal system in other countries.

The value of the comparative approach is demonstrated by Kagan’s review of Takao Tanase’s discussion of the resolution of automobile accidents in Japan (Tanase 1990). The substantive Japanese law governing automobile accidents is not very different from that in the United States. I t is a comparative fault-based system with third-party insurance. Furthermore, in Japan as in the United States, attorneys may represent plaintiffs on a contingency fee basis (Tanase 1990, 659). However, in practice, the system operates very differently, with the result that there is a very low level of uncertainty surrounding the legal consequences of accidents. First, damages are governed by nationwide standards. Out-of-pocket losses are covered by basic insurance that all drivers are required to purchase. Losses must be proven with formal documents such as past tax returns and medical receipts. Damages are assessed by an independent organization, not the insurance company that sold the policy, removing the company’s incentive to press for a low award. Once out-of-pocket expenses are fixed, pain and suffering damages are calculated by a standard formula (Tanase 1990, 690). Medical expenses are supervised by a Compulsory Insurance Investigative Bureau that employs medical consultants to reexamine dubious claims.

The standardized compensation scheme could not be maintained if the courts were willing to allow those who litigate to receive sums that were substantially greater than those available under insurance payment formulas. The judiciary itself eliminated this possibility by developing fixed formulae for determining damages. Special “traffic session’’ judges promulgate standards for compensation (Foote 1995). The result is that there is little uncertainty about damages.

Second, there is little uncertainty surrounding the facts of the accident and the allocation of fault. To a degree that would be found startling in the United States, the police report of the accident is given great weight. All accidents involving personal or property damages are to be reported to the authorities, and when this occurs policemen specializing in traffic accidents routinely are dispatched to the scene. They question the parties, “adjust differences in factual assertions of the parties and hammer out a consensual story as to what happened to which the parties agree and formally endorse by signing” (Tanase 1990, 674). The police reports are rarely challenged in court and establish a very strong presumption about what happened (Ram- seyer and Nakazato 1989). Appellate review of judgments to assess whether they are in conformity with traffic compensation laws and the guidelines established by the jury further reduces between-case variance. Because there is relatively little uncertainty about the expected value of cases, most are


resolved through nonlitigious dispute resolution mechanisms. These include court-annexed mediation and the Traffic Accident Dispute Resolution Cen- ter, which offers mediation outside the official court system. These alternatives offer quicker and cheaper resolution of disputes than does formal adjudication (Ramseyer and Nakazato 1989, 675-76).

Kagan notes that this entire set of arrangements differs from that in the United States because the Japanese decision-making institutions surrounding automobile accidents are “both more hierarchical and more reliant on expert judgements than the American system, where fact-gathering and assessment are dominated by adversarial investigation, pretrial discovery, and negotiation by contending parties and their lawyers” (p. 136).

Is the Japanese system better? The answer, of course, depends on our objectives. If our goal is individual justice, fine tuned to the specific needs of the plaintiff, perhaps not. Adversarial legalism and its alternatives have both strengths and weaknesses. Throughout his book, Kagan discusses ways in which adversarial legalism serves us well and frequently provides a bal- anced discussion of factual issues that are in dispute.15 As he notes at the outset, however, the book focuses on the dark side of adversarial legalism, as I have in this essay. Kagan would ameliorate adversarial legalism’s worst features, its costliness and its uncertainty.I6 I agree with Kagan that taming these features would be a good thing. I also share Kagan’s doubts about the likelihood of substantial change. In the last section of this essay I discuss why I hold this view.

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D. THE FUTURE OF ADVERSARIAL LEGALISM (AT LEAST IN TORTS)

Uncertainty, even more than cost, is the defining consequence of adversarial legalism. As the Japanese automobile accident example indicates, costs are a function of uncertainty. When a system produces predictable results, the costs associated with adversarial litigation often cannot be justified. In many situations, if uncertainty were reduced, costs would follow.

However, reducing uncertainty is very difficult in the American context for if, as Kagan argues, uncertainty is a consequence of adversarialism, it is also true that some of the key attributes of adversarialism are sustained by uncertainty. Consider again the defining attributes of adversarial legalism; (1) formal legal contestation; (2) litigant activism; (3) fragmented authority; and (4) weak hierarchical control of the judiciary. The first two attributes,

15. For example, he discusses the various research on whether American tort law acts as a significant deterrent, especially in the medical malpractice and products liability arena

16. Kagan is certainly not the first person to critique the existing situation and call for (pp. 141-44).

changes (see Strier 1994).


contestation and litigant activism, are triggered by uncertainty, and the absence of uncertainty reduces both.

Tanase’s automobile accident example reflects this process. Litigation is not worthwhile if one knows ahead of time what a case will be worth and that in most cases litigation will not change that value. In the absence of an incentive to litigate, the system lowers the level of formal legal contestation and litigant activism, including the incentive to employ counsel. Given this context, it is not surprising that Miyazawa reports that 60% of Japanese respondents surveyed about litigation agreed with the statement, “Litigation is expensive and time consuming, and even when you win, you will usually lose money” (Miyazawa 1987, 225).

In the United States the opposite is often the case. The uncertainty surrounding both the outcome and value of cases encourages litigant activism, which in turn fuels formal legal contestation. In both the United States and Japan, the level of uncertainty and the level of adversarial legalism are interconnected.

One might ask, of course, if we wish to reduce the level of adversarial legalism in the area of civil litigation, why don’t we simply do as the Japanese do and create greater certainty? To put the question another way, why haven’t successive waves of tort reform and other anti-litigation reform achieved this objective?

The answer requires us to understand the different types of reform. Thomas Burke (ZO02)17 provides a useful taxonomy of four types of reform: resistance, discouragement, management, and replacement. Resistance reform involves efforts to prevent the creation of new forms of litigation, such as the ability of individuals to sue their HMOs directly. Discouragement reform is designed to make litigation less attractive, for instance by abolishing the collateral source rule,” abolishing joint and several liability,” and

17. Another useful taxonomy can be found in Barnes (1997). 18. Under the collateral source rule, one’s judgment against a tortfeasor is not reduced

by other-collateral-sources of funds such as insurance proceeds that one may receive for the same occurrence. By abolishing the rule, legislatures make litigation less attractive.

19. When there are multiple defendants allegedly responsible for the same injury, the jury is asked to assign a percentage of responsibility to each. Under the joint and several liability rule, each defendant is responsible for all the money owed the plaintiff, and the plaintiff may collect the entire judgement from one defendant. If that defendant has paid more than its share, the defendant’s remedy is to attempt to collect the excess paid from the other defendants. This becomes a problem when, for whatever reason, some defendants do not pay. By abolishing or modifying the rule the legislature makes each defendant “severally” liable, i.e., liable only for its percentage of liability. The plaintiff must go from defendant to defendant to collect the entire judgment and the risk that some defendant will be judgment proof falls on the plaintiff. An example of the effect of the rule may be found in Walt Disney World v. Wood, 515 So. 2d 198 (Fla. 1987). The plaintiff was injured when she and her fiancC collided while riding a bumper car ride at the amusement park. The jury found her 14% responsible for her own injury, her fiand 85% responsible for the injury and Walt Disney World 1% responsible. Because Florida at the time had not modified the joint and several liability rule, she was able to collect 86% of her damages from Walt Disney World, but Disney


capping damages. Management reform attempts to replace litigation with other problem-solving mechanisms. It includes arbitration, mediation, and other potentially less adversarial fora. Finally, replacement reform replaces litigation with a different problem-solving mechanism.

Resistance reform has met with limited success.2o Discouragement reform is perhaps the most prevalent type of tort reform in the United States. In a number of jurisdictions, these efforts have failed because the courts have declared the statutes to be unconstitutionaL’l Even where tort reform statutes are upheld, most studies indicate that they have had limited direct and indirect effects.22 Note, however, that the direct effect of reducing the volume of litigation is not achieved by reducing the total costs or uncertainty surrounding litigation. Rather, most of the effect is achieved by shift- ing costs and uncertainty from defendants to plaintiffs.

Management reform is of two types. Some alternative dispute resolution mechanisms are adjuncts of courts and serve primarily as a tool in docket management (Hensler 2001). More significant are the nongovern- mental dispute resolution fora that are increasingly mandated in sales and employment These fora do offer opportunities to reduce costs. Whether they reduce uncertainty is less clear. The fact that the alternatives almost never employ juries may reduce uncertainty to some extent, but as the research reported above suggests, certainty depends as much on the clar- ity of the decision rules used to resolve cases as on who decides the cases.24 Because these alternatives are based on contractual agreements, they have little impact on the main areas of tort law such as automobile accidents, products liability, and medical malpractice where either the parties are strangers or where contractual limitations on remedy are prohibited (see Restatement (Third) of Torts: Products Liability, 3 18).

The most noteworthy example of replacement reform is the creation of a workers’ compensation systems in the first half of the twentieth century. For present purposes, the movement to workers’ compensation is best understood as a move from uncertainty to certainty (Friedman and Ladinsky

73 1

was unable to collect the 85% from the fiance. Today in Florida, the plaintiff would only be able to get 1% of her damages from Disney.

20. See Rush Prudential HMO v. Moran, 122 S.Ct.2151 (2002) (affirming the power of states to pass legislation allowing individuals to sue HMOs over treatment decisions.)

21. See Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997). 22. See Burke (2002, 32). Direct effects are usually measured in terms of declines in

litigation rates, insurance rates, or similar indicators. Indirect effects include perception among jurors that there is a litigation explosion and that many cases are unmeritorious. To the degree that this translates into fewer plaintiff victories, such beliefs should reduce the level of litigation. See Hans (2000).

23. In Circuit City Stores v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001), the Supreme Court upheld a mandatory arbitration clause in an employment contract.

24. An unanswered question is whether, over time, the absence of juries leads to more precise decision rules. This might occur if decision makers were aware of each other’s decisions and adjusted their own rulings accordingly, something one-shot jurors cannot do.


1967). Prior to workers’ compensation, an employee had to prove that his employer was negligent in order to recover, and his own contributory negligence would bar recovery. Special doctrines such as the “fellow-servant rule”25 introduced further uncertainty into the system. However, the employer also faced substantial uncertainty, in large part because of what we would now call jury nullification; juries sometimes awarded damages to injured workers even in situations where employer liability did not exist.

After the introduction of workers’ compensation, employers paid all workers for work-related injuries, regardless of fault. Employees were certain of some recovery if injured on the job. In return, employers received certainty in the form of predictable costs for each injury. The damages to which workers were entitled were narrowly prescribed by statute and access to the regular courts was restricted. The basic outline of this bargain remains in place today. As the workers’ compensation example demonstrates, replacement reform is not simply a matter of enacting new rules. Rather, it involves “major changes in legal institutions as well as in specific legal rules” (p. 250).

There are a few other examples of replacement reform, including systems for those suffering from black lung disease (30 U.S.C. $3 801-962 [1988]) (a diminishing group given the decline of deep-pit mining for coal) and those injured by childhood vaccines (42 U.S.C. $5 300aa-1 to-34 [1993]). However, perhaps the most salient fact about workers’ compensation is that it has so rarely been emulated. The failure of most states to adopt no-fault automobile insurance in the 1960s and 70s, the failure to adopt an administrative solution to run-of-the-mill bankruptcy cases, and the failure to adopt worker’s compensation-like solutions for injuries that occur in hospitals (O’Connell and Neale 1998) seems to have eliminated the possibility that the United States might slowly move toward non-com- mon law solutions for most tort claims. In retrospect, workers’ compensation appears to be the exception, and not the rule.

Interestingly, workers’ compensation schemes have not been immune to adversarial pressures. In his well-crafted case study of the California Indus- trial Accident Commission (IAC), Philippe Nonet catalogues the transformation of the commission from an informal problem-solving agency organized to provide for the needs of injured workers in a nonadversarial environment toward a “judicial body, which sought in rules and principles the guide for and the justification of its determinations” (Nonet 1969, 165). Nonet describes this as a movement from administration to adjudication, a process that was caused in part by the organized efforts of the bar (1969, 121).

25. Under this rule, an employer was not responsible for an injury to an employee if the employee was injured through the negligence of a co-employee, i.e., a fellow servant. The employee’s legal remedy was against the fellow servant who, more likely than not, was judgment proof.


During the early period of the IAC, the commission developed the idea of “average justice.” The assessment of individual damages based on the losses incurred in each particular case would be abandoned in favor of the establishment of a uniform schedule of benefits applicable to all cases (Nonet 1969, 232). The movement toward a more adversarial process threatened this scheme. Nonet comments that, “the idea of average justice was consid- erably undermined by the strenuous attempts of unions and lawyers to en- large compensation benefits and to make the law more responsive to the demands of claimants. The growth of ratings for such ’subjective’ factors as pain or psychic traumas was particularly significant in this respect” (Nonet 1969, 233).

In the face of this adversarial pressure and the judicialization of proceedings, the IAC worked hard to maintain efficiency and certainty. This included the revival of the idea of average justice, which, as Nonet notes, has the twin virtues of creating predictability and avoiding adversariness (1969, 234).

The accretion of adversarial processes onto workers’ compensation re- gimes is not unique to California. Several states have undergone subsequent rounds of “reform” in an effort to thwart this tendency. For example, a revi- sion of the workers’ compensation act in Texas in the 1990s was justified by the legislature’s Joint Select Committee on Workers’ Compensation In- surance because “[tlhe system, intended to be a no-fault, uncontroversial system, manifest[ed] a very high level of attorney involvement and increasing levels of controversy and litigation.”26

In sum, most tort reform in the United States has been in the form of either resistance or discouragement. Management and displacement reform are rarer, and, even when they do occur, the arrangements they create are often under considerable adversarial pressure. The result is that only rarely does reform have a substantial effect on levels of uncertainty, and the existence of uncertainty in turn helps to create the litigant activism and formal legal contestation that is at the heart of adversarial legalism.

By way of contrast, note that the Japanese response to automobile accidents is a mix of management and replacement reform. Such a response is not unique to automobile accidents. Historically, when problems have arisen, be they environmental pollution, landlord-tenant relations, and so forth the typical response in Japan has been to create a relatively certain outcome that is available through informal procedures (Jacob et al. 1996, 360-65). The general pattern is the same. Confronted with an increase in litigation, the government responds with a scheme that downplays the judicial system as the appropriate institution for allocating loss, deprives the legaI profession of a central role, and “significantly reduces the role of indi-

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26. Hardberger quoting the committee’s 1988 Report to the 71st Texas Legislature (2000, 4). See also Korioth (1991).


viduals as an instrument of law enforcement or law reform through the enforcement, reinforcement] or assertion of individual rights” (Morishima and Smith 1986, 532-33).

Joel Rosch’s (1987) article on the Japanese Civil Liberties Bureau (CLB) provides an example that is an instructive counterpoint to Nonet’s description of the California Industrial Accident Commission. The CLB was a creature of the American occupation of Japan following World War 11. Modeled after the Civil Rights Section of the United States Justice De- partment, its purpose was to the protect human rights. Over time, however, the vast majority of the bureau’s work shifted to hearing everyday disputes such as complaints about loud music, dogs barking, noise from trains, planes and construction activities, ostracism] and slanderous neighborhood rumors (Rosch 1987, 245). Here are a two sample cases reported by Rosch:

A rural family was ostracized by their neighbors for being uncoopera- tive; they were not invited to any weddings or funerals, and their chil- dren were bullied at school. CLB officials convinced the community that its behavior was inappropriate.

An elderly gentleman was unable to sleep because of noise in a business adjoining his apartment. The CLB showed both parties how to mute the noise.

Not all cases were of such a quotidian nature. The CLB also persuaded a private company to pay for damages to a home caused by vibrations from nearby construction; it persuaded a drug company to pay compensation to employees it had coerced into taking a drug it wanted to test; and it was involved in getting the local and national governments to take steps to reduce pollution in the Shimida River in Tokyo (Rosch 1987, 247-48). When Rosch wrote his article, the CLB caseload was 375,000 a year, very few of which came from the courts or the police.

Rosch emphasizes that the Japanese may dispute with one another at a rate similar to that in other societies. What is different is not the number of disputes but the agencies to which people bring disputes. “The Japanese regularly bring disputes to a variety of public agencies where mediation rather than adjudication is the norm” (Rosch 1987, 260). The CLB case is particularly instructive, for it is a forum that over time moved in the opposite direction from Nonet’s IAC, to become less, not more adversarial.

Why are nonadversarial responses so prevalent in Japan and so rare in the United States? I believe the answer to this question involves the interaction of legal culture and legal structure and these in turn implicate still larger issues of social structure and culture in general.

On the structural side, the Japanese response occurs against the background of a strong state. Like France, Japan has been governed by an en-


trenched, professional national bureaucracy. The executive is shielded from most judicial interference, and courts play little role in policy making. The substantial majority of judges come to the bench directly from the university and are tightly controlled by a central judicial executive, which in turn has historically been controlled by the Liberal Democratic Party, the party that has been in power for most of the post-World War I1 era (Ramseyer 1994). The centralization of authority and the hierarchical control of the judiciary are organizational characteristics that, according to Kagan, are not associated with adversarial legalism, in part because they facilitate management and replacement reforms (p. 9; Ramseyer: 1994).

On the cultural side, the Japanese response occurs against a background of a more communal, less individualistic culture. Japanese are less likely to view a person as an autonomous individual and more likely to view the person as someone embedded in a social context. The perception of the self is more sociocentric and less egocentric (Cousins 1989). Some of the cases described by Rosch reflect this difference. He begins his article with this short vignette: “A Japanese colleague . . . once told me that when he was living in New York he always wondered which agency of government someone went to if nobody in their apartment building would talk to them” (1987, 243). In sum, a rather formidable body of research indicates Japanese are more contextual actors, that is, they are more inclined to see society as a whole as primary and its individual parts as ~econdary.’~

From the 1960s through the early 1980s sociolegal scholars engaged in a debate concerning the primacy of culture or structure in explaining the Japanese legal system, primarily within the context of trying to understand lower litigation rates in Japan. The debate began with Kawashima’s famous article that attributed Japanese tendency to choose mediation over litigation and to sue one another with less frequency than Americans to “the social- cultural background of the problem. Traditionally, the Japanese people prefer extra-judicial, informal means of settling controversy’’ (Kawashima 1963). In a series of articles in the late 1970s and early 80s, John Haley challenged the “cultural” interpretation of Japanese-American differences. Haley rejected the argument that Japanese litigation rates are lower because the Japanese are reluctant to turn to law. Haley argued instead for a structural explanation. The Japanese do not litigate more because, compared to alternatives, litigation does not pay (Haley 1978, 1982, 1991).

735

27. See Hamilton and Sanders (1992) for a discussion of the substantial body of research supporting this position. One must be careful, however, not to overstate differences. Japanese are individualistic in a number of important senses, including a desire for self-development and moral worth. It is, however, a more interconnected individualism. Summarizing one ex- periment, Cousins notes: “Japanese subjects make use of an array of attributive terms sugges- tive of individuality, hut this is an individuality expressed within, rather than beyond, the provinces of social context. . . .Japanese are less concerned with asserting themselves through abstract summaries of behavior, as autonomous agents whose actions and feelings exist apart from everyday social settings and engagements with others” (Cousins 1989, 130).


If one were forced to choose between Haley and Kawashima, Haley’s explanation for low litigation rates would be the better choice. In the case of automobile accidents and many other areas, the structural impediments to litigation are sufficient to explain behavior. Rational actors, whether they are individualists or contextualists, would eschew litigation when it offers little more than other methods of dispute resolution, but at greater cost. In Japan, litigation rarely offers a superior solution, both because of the avail- ability of alternative fora and because the Japanese government has kept both courts and lawyers (bengoshi) in short supply (Jacob et al. 1996, 318). This poses another question, however. Why has it been relatively easy in Japan to reduce the role of formal, individual assertion of claims in court?

In my opinion, part of the answer is that Japanese cultural values create political support for such legislation.28 The legislation, in turn creates a legal structure that reinforces cultural norms about the relationship of people and society. The extrajudicial resolution of automobile accidents is a case in point. In deflecting automobile accident cases from formal adjudication, the Japanese legal system maintains consistency between Japanese legal structure and the culture that defines people in terms of sets of interwoven contextual relationships, not as rights bearing autonomous individuals.

The interaction of structure and culture also helps explain the Ameri- can situation. The United States is a relatively weak state, and it is usually the case in that situation that the judiciary is relatively stronger. As Jacob notes, “the accumulation of the power to hear ordinary cases, review administrative actions, and review the constitutionality of legislation makes ordinary judges in the United States far more powerful political figures than elsewhere” (Jacob et al. 1996, 394-95). And as Kagan notes, hierarchical control over the judiciary is quite weak.

An individualistic culture also supports adversarial legalism for it justi- fies the choice of each person to pursue his or her own best interest even when people believe this choice may harm some other social Indeed,

28. As Ramseyer notes, “Japanese barbers, taxi-drivers, and bureaucrats still lose no time in telling American law professors that the Japanese, being Japanese, think suing is un-Japa- nese” (Ramseyer 1988, 112).

29. Results of a survey concerning litigation and health care costs reflect this belief. In a national telephone survey of more than 1,200 individuals conducted in the spring of 2002 for the Kaiser Foundation, Harvard’s Kennedy School of Government, and National Public Radio, the respondents were asked how important the number of malpractice lawsuits is as a factor in causing rising health care costs: 59% said very important, 23%, somewhat important, 9%, not too important and 4%, not at all important (6% “don’t know”) (Question ID: USICR.02HLTHC R23F 049).

In another survey conducted in the summer of 2001 for CNN and USA Today, respondents were asked, regarding the outcome of a patients’ bill of rights, whether they were more concerned that “Americans will not be able to sue their HMOs when they suffer serious harm, or frivolous lawsuits against HMOs will increase the cost of health insurance for Americans.” Thirty-six percent were more worried about an inability to sue, while 5 1% were more worried lawsuits would increase the costs of insurance. (Question ID: USGALLUP.OlJLY10 R34 003).

One might conclude from these results that people would support a restriction on the


individualistic rhetoric is often part of the political objection to actions that would do much more than moderate the effects of adversarial legalism. The key point, of course is that structure and culture interact and that it is this interaction that creates stable societies and stable legal orders (Jacob et al. 1996, 365).

This is not to say that things can’t change. In Japan, there appears to be a sense that change is in the air. As David Johnson notes in his essay in this symposium, along with any advantages Japanese style dispute resolution may have, it has costs as well. Even as Kagan calls for less adversarial legalism in the United States, some Japanese scholars are calling for more adversarial legalism in Japan (Miyazawa 1995, 2001).

Japanese business interests, concerned with the ability of Japanese firms to compete in international markets, have called for a strengthening of the judicial infrastructure, including an increase in the number of judges and lawyers. Others have called for the creation of graduate professional law schools such as exist in the United States (Miyazawa 2001). An increase in judicial and legal capacity may well alter the individual litigation calculus. Other structural impediments to litigation have also been reduced. Within the realm of tort law, the Japanese passed a products liability statute in 1994. The statute moved products law in the direction of strict liability and was widely thought to increase the role of the courts in resolving product related injury claims (Kelemen and Sibbitt 2002). It is reported that some Japanese manufacturers have responded by reviewing safety, adding warnings and im- proving quality control procedures (Sarumida 1996; Rothenberg 2000). However, as David Johnson notes in his essay in this symposium, the new law has had only a small impact on litigation. During the first four years of its existence fewer than 20 lawsuits were brought by consumers (Johnson 2003). Even a rare victory under the new statute is a cautionary tale. In 1999 a Nagoya court found McDonald’s guilty in a case in which a young woman who purchased orange juice from one of it’s stores claimed that something in the juice injured her throat, causing her to vomit blood shortly after drinking the juice. However, the recovery was a modest 100,000 yen.

737

right to sue HMOs. However, in two separate surveys conducted for CBS and the New York Times in 1998 and 2000 respondents were asked: “Some people say patients should be able to sue HMOs for their mistakes just like they can sue doctors in malpractice suits. Others say more lawsuits would just make medical costs more expensive for the consumer than they are now. What do you think-should patients be able to sue HMOs, or not?” To this question 70% in 1998 and 66% in 2000 said that Congress should make it possible to sue HMOs. (Question ID: USCBSNYT.98007A Q086 061) (Question ID: USCBSNYT.20007A 458 040).

If we assume that the respondents in the latter surveys share the views of the respondents in the first two surveys concerning the impact of litigation on health care and insurance costs, one plausible interpretation of these results is that even in the face of adverse societal consequences, most people believe that individuals should be permitted to pursue their own individual interest.

Note: All of these data are from the Westlaw database: Poll.


At an exchange rate of 100 yen to the dollar, this is $1,000, hardly the size of recovery that will encourage widespread l i t igati~n.~’ I suspect that those who hope for a sharp turn toward adversarial legalism in Japan will be disappointed.

Those who hope for a sharp turn away from adversarial legalism in the United States will be similarly disappointed. Living within the buffeting winds of controversy and change that are part of everyday life, it is easy to lose sight of the fact that the United States is a stable society. The fundamental sociological reason this is so is because the nation’s social structure and its culture are in rough correspondence. Adversarial legalism as a set of structural arrangements reflects deep-seated cultural values that in turn help to create and maintain the structural arrangements that give them ex- pression. Absent a fundamental change at other levels of the social order, a much stronger state or a turn from individualism, adversarial legalism will remain a defining characteristic of American civil law and particularly of American tort law.

REFERENCES

Ansaldi, Michael. 1990. Texaco, Pennzoil and the Revolt of the Masses: A Contracts Postmortem. Houston Law Review 27:733-831.

Bailis, Daniel, and Robert MacCoun 1996. Estimating Liability Risks with the Media as Your Guide: A Content Analysis of Media Coverage of Tort Litigation. Law and Human Behavior 20419-29.

Barnes, Jeb. 1997. Bankrupt Bargain? Bankruptcy Reform and the Politics of Adversarial Legalism. Journal of Law and Politics 13:893-935.

Booth, William. 2002. Las Vegas Trauma Center Closes as Doctors Quit; Surgeons Cite Rising Costs of Malpractice Insurance, Lawsuits a Growing National Problem. Wash- ington Post, 4 July, A2.

Bovbjerg, Randall R., Frank A. Sloan, and James F. Blumstein. 1989. Valuing Life and Limb in Tort: Scheduling “Pain and Suffering.” Northwestern University Law Review 83:908-76.

Burke, Thomas F. 2002. Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society. Berkeley and Los Angeles: University of California Press.

Cousins, Steven D. 1989. Culture and Self Perception in Japan and the United States. Journal of Personality and Social Psychology 56: 124-3 1.

Daniels, Stephen, and Joanne Martin. 2000. “The Impact That It Has Had Is between People’s Ears”: Tort Reform, Mass Culture, and Plaintiffs’ Lawyers. DePaul Law Re- view 50:453-96.

. 2002. I t Was the Best of Times, It Was the Worst of Times: The Precarious Nature of Plaintiffs’ Practice in Texas. Texas Law Review 80:1781-1828.

Danzon, Patricia M. Danzon 1985. Medical Malpractice: Theory, Evidence, and Public Pol- icy. Cambridge: Harvard University Press.

Eisenberg, Theodore, John Goerdt, Brian Ostrom, David Rottrnan, and Martin T. Wells 1997. The Predictability of Punitive Damages. Journal of Legal Studies 26:623-61.

30. For a discussion of the case, see Rothenherg 2000, 489-90.

Adversarial Legalism: Prospects for Change 739

Engel, David M. 1984. The Oven Bird’s Song: Insiders, Outsiders, and Personal Injuries in an American Community. Law and Society Rewiew 18551-82.

Erlanger, Howard, Elizabeth Chambliss, and Marygold Melli. 1998. Participation and Flexibility in Informal Processes: Cautions from the Divorce Context. Law and Soci- ety Rewiew 21585-604.

Ewick, Patricia, and Susan S. Silbey. 1998. The Commonplace of Law. Chicago: University of Chicago Press.

Felstiner, William, Richard Abel, and Austin Sarat. 1980. The Emergence and Transfor- mation of Disputes: Naming, Blaming, Claiming. Law and Society Review 15:631- 54.

Flemming, Roy B. 1998. Contested Terrains and Regime Politics: Thinking about Ameri- ca’s Trial Courts and Institutional Change. Law B Social Inquiry 23:941-65.

Foote, Daniel. 1995. Resolution of Traffic Accident Disputes and Judicial Activism in Japan. Law in Japan 25:19.

Friedman, Lawrence, and Jack Ladinsky. 1967. Social Change and the Law of Industrial Accidents. Columbia Law Review 67:50-82.

Galanter, Marc. 1993. The Regulatory Function of the Civil Jury. In Verdict: Assessing the Civil Jury System, ed. Robert Litan. Washington, D.C.: Brookings Institution.

. 1996. Real World Torts: An Antidote to Anecdote. Marylud Law Rewiew 55: 1093-1 160.

Green, Michael. 1984. The Inability of Offensive Collateral Estoppel to Fulfill Its Promise: An Examination of Estoppel in Asbestos Litigation. Iowa Law Rewiew 70:141-235.

Haley, John Owen. 1978. The Myth of the Reluctant Litigant. lournal of Japanese Studies 4:359-90.

. 1982. The Politics of Informal Justice: The Japanese Experience, 1922-42. In The Politics of l n f o m l Justice, ed. Richard Abel. Vol. 2, 125-48. New York: Aca- demic Press.

. 1991. Authority without Power: Law and the Japanese Paradox. New York: Oxford University Press.

Hamilton, V. Lee, and Joseph Sanders. 1992. Everyday Justice: Responsibility and the Indiwid- uaE in the United States and Japan. New Haven, Conn.: Yale University Press.

Hans, Valerie P. 2000. Business on Trial: The Civil Jury and Corporate Responsibility. New Haven, Conn.: Yale University Press.

Hardberger, Phil. 2000. Texas Workers’ Compensation: A Ten-Year Survey-Strengths, Weaknesses, and Recommendations. S t . Mary’s Law Journal 32:l-76.

Hensler, Deborah. 2001. In Search of “Good” Mediation: Rhetoric, Practice, and Empiri- cism. In Handbook ofJustice Research in Law, ed. Joseph Sanders and V. Lee Hamil- ton, 231-68. New York: Plenum

Jacob, Herbert, Erhard Blankenburg, Herbert M. Kritzer, Doris Marie Provine, and Joseph Sanders. 1996. Courts, Law, and Politics in Comparatiwe Perspectiwe. New Haven, Conn.: Yale University Press.

Johnson, David T. 2003. American Law in Japanese Perspective. Law B SociaE Inquiry 28 ( 3 ) : 771-98.

Kawashima, Takeyoshi. 1963. Dispute Resolution in Contemporary Japan. In Law in Ja- pun, ed. A. von Mehren, 41-72. New York: Cambridge University Press.

Keleman, R. Daniel, and Eric C. Sibbitt. 2002. The Americanization of Japanese Law. University of Pennsylwunia Journal of lnternational Economic Law 23:269-323.

Korioth, Tony. 1991. Workers’ Compensation Law. Southwest Law Journal 45:697-710. Kritzer, Herbert. 1990. The Justice Broker: Lawyers and Ordinary Litigation. New York:

Oxford University Press. Laing, Bryan. 1997. Assessing Medical Malpractice Jury Verdicts: A Case Study of an

Anesthesiology Department. Cornell Journal vf Law and Public Policy 7:121-64.


Lande, John. 1998. Failing Faith in Litigation? A Survey of Business Lawyers’ and Execu-

Lawmakers Praise Tort Reform Legislation. 2002. Las Vegas Sun, 2 August, 4. LoPucki, Lynn M., and Walter 0. Weyrauch. 2000. A Theory of Legal Strategy. Duke

Law Journal 49:1405-86. Matthews, Forest. 2002. Forest Service Sued over Backfire: Mont. Group Says Tactic

Fueled Blaze. Washington Post, 5 August, A13. Miyazawa, Setsuo. 1987. Taking Kawashima Seriously: A Review of Japanese Research

on Japanese Legal Consciousness and Disputing Behavior. Law and Society Review 2 1 :2 19-41.

. 1995. For the Liberal Transformation of Japanese Legal Culture: A Review of Recent Scholarship and Practice. Kobe University Law Review 29:64.

. 2001. The Politics of Judicial Reform in Japan: The Rule of Law at Last? Asian- Pacific Law and Policy Journal 2:19.

Morishima, Akio, and Malcomb Smith. 1986. Accident Compensation Schemes in Japan: A Window on the Operation of Law in a Society. University of British Columbia Law Review 20:491-533.

tives’ Opinions. Harvard Negotiation Law Review 3: 1-69.

Nonet, Philippe. 1969. Administrative Justice. New York: Russell Sage. O’Connell, Jeffrey, and James F. Neale. 1998. HMOs, Cost Containment, and Early Of-

fers: New Malpractice Threats and a Proposed Reform. Journal of Contemporary Health Law and Policy 14:287-314.

Osborne, Evan. 1999. Courts as Casinos? An Empirical Investigation of Randomness and Efficiency in Civil Litigation. Journal of Legal Studies 26:187-203.

Polinsky, A. Mitchell. 1997. Are Punitive Damages Really Insignificant, Predictable, and Rational? A Comment on Eisenberg et al. Journal of Legal Studies 26:663-77.

Ramseyer, Mark. 1988. Reluctant Litigant Revisited: Rationality and Disputes in Japan. Journal of Japanese Studies 14:112.

. 1994. The Puzzling (1n)dependence of Courts: A Comparative Approach. Journal of Legal Studies 23:721-47.

Ramseyer, Mark, and Minoru Nakazato. 1989. The Rational Litigant: Settlement Amounts and Verdict Rates in Japan. Journal of Legal Studies 18:263-90.

Reparations Issue Is a Smoke Screen and a Shakedown. 2002. Los Angeles Times, 22 April, B11.

Rosch, Joel. 1987. Institutionalizing Mediation: The Evolution of the Civil Liberties Bu- reau in Japan. Law and Society Review 21:243-66.

Rothenberg, Phil. 2000. Japan’s New Product Liability Law: Achieving Modest Success. Law and Policy in lnternational Business 31:453-516.

Saks, Michael J. 1992. Do We Really Know Anything about the Behavior of the Tort Litigation System-and Why Not? University of Pennsylvania Law Review 140:1147- 1292.

Sanders, Joseph. 1998. Bendectin on Trial. Ann Arbor: University of Michigan Press. Sanders, Joseph, and Craig Joyce. 1990. “Off to the Races”: The 1980s Tort Crisis and

the Law Reform Process. Houston Law Review 27:207-95. Sarumida, Hiroshi. 1996. Comparative Institutional Analysis of Product Safety Systems

in the United States and Japan: Alternative Approaches to Create Incentives for Product Safety. Cornell International Law Journal 29:79-160.

Schkade, David. 2002. Erratic by Design: A Task Analysis of Punitive Damages Assess- ment. Harvard Journal on Legislation 39:121-37.

Schkade, David, Cass Sunstein, and Daniel Kahneman. 2000. Deliberating about Dollars: The Severity Shift. Columbia Law Review. 100:1139-75.

Seeking Justice for Slavery’s Sins. 2002. Los Angeles Times, 22 April, E l .

Adversarial Legalism: Prospects for Change 74 1

Sloan, Frank et al. 1993. Suing for Medical Malpractice. Chicago: University of Chicago Press.

Special Committee of the ABA Section of Litigation. 1989. Jury Comprehension in Com- plex Cases. Chicago: American Bar Association.

Strier, Franklin. 1994. Reconstructing Justice: An Agenda for Tnhl Reform. Westport, Conn.: Quorum Books.

Sunstein, Cass, Daniel Kahneman, and David Schkade. 1998. Assessing Punitive Dam- ages (with Notes on Cognition and Valuation in Law). Yale Law J o u m l 107:2071- 2153.

Syverud, Kent. 1997. ADR and the Decline of the American Civil Jury. UCLA Law Review 44:1935-45.

Tanase, Takao. 1990. The Management of Disputes: Automobile Accident Compensa- tion in Japan. Law and Society Review 24:651-91.

Taragin, Mark, L. R. Willett, A. P. Wilczek, R. Trout, and J. L. Carson. 1992. The Influ- ence of Standard of Care and Severity of Injury on the Resolution of Medical Mal- practice Claims. Annals of internal Medicine 117: 780-84.

Three Big Companies Named in Slave Reparations Suit. 2002. Los Angeles Times, 27 March, C1.

Tisch, Jessica. 2002. Profiting from Apartheid. Wall Street Journal, 2 August, A8. Trubek, David. 1972. Max Weber on Law and the Rise of Capitalism. Wisconsin Law

Review 1972:720-53. Trubek, David M., Austin Sarat, William L. F. Felstiner, Herbert Kritzer, and Joel B.

Grossman. 1983. The Costs of Ordinary Litigation. UCLA Law Review 31:72-127. Vidmar, Neil, Felicia Gross, and Mary Rose. 1998. Jury Awards in Medical Malpractice: A

Profile of Awards, Proportions for General Damages, and Post-Verdict Adjustments. DePaul Law Review 48:265-99.

Vidmar, Neil, and Jeffrey J. Rice. 1993. Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals. Iowa Law Review 78:883-911.

Viscusi, W. Kip. 1991. Reforming Products Liability. Cambridge: Harvard University Press. Weyrauch, Walter 0. 1999. Unwritten Constitutions, Unwritten Law. Washington and

Lee Law Review 56:1211-42.

Adversarial Legalism and Civil Litigation: Prospects for Change

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