Reflecting society: Studies in federal civil litigation involving businesses, 1971--2004.

摘要

Discussions of litigation and the so-called "litigation explosion" have focused on the underlying "litigiousness" of Americans. While Americans' readiness to assert their rights is an important factor driving litigation volumes, there are many other factors that influence the size of the caseload, such as changes in social mores, the economy, technology, and the law.; In order to understand how these factors operate, one cannot look at litigation as a homogeneous phenomenon. In this study, I look at litigation by case type: e.g. employment law, copyright law, etc. It quickly becomes apparent that distinct social phenomena drive volumes of each type of case.; I find some case types account for much more litigation than others. Given any particular case type, some actors and types of actors account for much more litigation than others. Short-term social events can lead to temporary "bursts" of litigation, or new causes of action can create a permanent increase in litigation. The total number of possible causes of action is likely to increase over time as increasingly-prosperous Americans demand "total justice."; Because of the independent logic underlying case types, there is also substantial variability in plaintiff win rates between different case types. There is no unitary theory that can account for the plaintiff win rates. For instance, some case types have more federal plaintiffs; federal plaintiffs tend to have a higher win rate than private plaintiffs, because the government selects its best cases for prosecution.; I examine fourteen different case types and find different actors dominating each type. This examination of case types revealed the following three phenomena. The large supply of attorneys creates incentives for them to invent new types of cases, in what I term "legal entrepreneurship." Many types of civil lawsuits involve what one might call private policing activity, mainly undertaken by corporations. As the volume of lawsuits changes, concerned parties go to the legislature, trying to change the law in their favor, creating a feedback loop between the legal and political systems. Examples of these phenomena are given in the thesis.