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October 23, 2005

Table of contents, The Litigation Explosion

The Litigation Explosion: What Happened When America Unleashed the Lawsuit by Walter Olson (Dutton/Plume: Truman Talley Books, 1991)

Table of contents (slightly annotated, with links)

Foreword

THE INDUSTRY

1. Let's You and Him Fight [advertising and solicitation]

2. A Piece of the Action: The Triumph of the Contingency Fee [excerpt:Policy Review]

3. Role Reversal: How Lawyers Took Charge [class actions] [excerpt:Across the Board]

THE LAWSUIT

4. Happier Hunting Grounds [long-arm jurisdiction] [related articles: Fortune, Reason]

5. Litigation Made Easy: Suing Without Explaining [notice pleadings]

6. The Assault on Privacy [pre-trial discovery]

THE LAW

7. Up for Grabs: How Everything Became Litigable [excerpt: Washington Post]

8. Guessing for Verdicts [evidence, experts, damages]

9. Have Lawsuit, Will Travel [choice of law]

10. No Exit: The Death of Contract

THE CONSEQUENCES

11. The Race to the Gutter

12. Junk Litigation: What's Merit Got to Do With It?

13. Naked to Mine Enemies [punitive damages, due process, civil vs. criminal law]

THE WAY OUT

14. The Powers of Imposition

15. Strict Liability for Lawyering [sanctions for meritless litigation; loser-pays] [related article: Reason]

16. The Balance of Legal Peace

Back to The Litigation Explosion page

Reviews of The Litigation Explosion

Review highlights, The Litigation Explosion: What Happened When America Unleashed the Lawsuit by Walter Olson (E.P. Dutton/Truman Talley Books)

"An elegance, wit, and understated passion that is a delight to encounter….It's become a familiar complaint that the 'lawsuit industry' is crippling American business....[Here] is by far the best account yet available on how things got that way -- and what to do about it.… So buy this book, read it, then give it to a lawyer; if nothing else, it will show him or her what good writing is all about." -- Chris Byron, New York magazine

"A valuable contribution to the public interest....A well-informed layman like the author, looking at the broad picture, can perhaps see what some of us within the profession do not see -- or do not want to see." -- former Chief Justice Warren E. Burger, New York Times Book Review

"Lively, challenging and even entertaining…Olson goes beyond the tired old bogeymen of the lawyer-bashers and offers a more thoughtful and probing analysis of what has gone wrong in our legal system....Olson may not take it as a compliment, but he resembles nothing so much as an especially articulate and passionate lawyer making a closing argument to the jury." -- Jonathan Kirsch, Los Angeles Times

"A brisk, bright book…what's really striking...is the clarity with which he expounds legal theories and complexities." -- The New Yorker

"Brimming with intelligence, smartly written, accessible to lawyer and layman alike….I wish I'd had this book in law school.... the clearest explanation yet of why the legal system went haywire....Olson has launched a cruise missile of a book straight into the heart of America's corrupted litigation system." -- James Andrews, National Review

"A hard-hitting expose of what the deregulation of litigation has done to American society in the last 20 years. From child custody to acquisitions and mergers, Olson demonstrates the depth of the problem." -- Booklist

"An important book....The catalogue of abuses by the legal profession cited here seems endless." -- Publisher's Weekly

"His research is impressive, drawn not just from popular publications but from law journals and court decisions as well...Olson...has learned a lot from the trial lawyers he so energetically eviscerates, and his style of argumentation would make even the most aggressive and dramatic of them proud....He certainly knows an awful lot about the folkways and fallacies of the caste he castigates." -- Newsday

"A splendid book….Mr. Olson, writing in lucid, jargon-free prose...has correctly analyzed the causes of the sickness of our litigation system and he also presents prescriptions for at least a partial cure." -- Judge Robert Bork, Washington Times/Insight magazine

"Intelligent, provocative....Olson is skillful in distilling the legal arguments and explaining both the ideas and their significance to his audience." -- Christian Science Monitor

"Convincing....A persuasive case for reform of the civil-litigation system." -- Kirkus Reviews

"Colorful and accurate…Olson's contribution, and the unifying theme of his book, is to articulate what practicing lawyers themselves know but seldom have time to think about and today's law schools almost totally ignore." -- John Kester, The Washingtonian

"Superbly crafted...Even the most partisan lawyer will agree with Mr. Olson that many areas of the system cry for reform...A devastating indictment." -- James Zirin, Chief Executive

"Passionate and eloquent...Lawyers in their greed...legislators by their negligence, courts by the relaxation of rules...and the U.S. Supreme Court by its failure to protect due process are all flushed from their bunkers under Olson's withering salvos." -- Fortune

"What Adam Smith was to free marketeers and Karl Marx was to revolutionaries, Walter Olson is to court reformers. The Litigation Explosion is a superb work of advocacy that catalogues every mistake the court system has made in the last fifty years. This book is the entering wedge for a serious reassessment of civil courts." --Richard Neely, Chief Justice, West Virginia Supreme Court; author, How Courts Govern America

"Will appeal to anyone wondering why the litigation explosion developed, what it means, and who profits and who loses...Recommended." -- Library Journal

Interviews, features and appearances on author and book included Forbes, the Wall Street Journal, "Oprah", "Donahue", the Larry King radio show, and many others. The book was excerpted in the Washington Post, Policy Review, Reason, American Enterprise, and Across the Board. In a headline-making speech to the American Bar Association, Vice President Dan Quayle praised the book as "one of the most insightful studies" of America's love affair with the lawsuit.

* * *
More about The Litigation Explosion

The Litigation Explosion

The Litigation Explosion: What Happened When America Unleashed the Lawsuit was published by E.P. Dutton/Truman Talley Books in 1991. A softcover edition was published by Plume in 1992.

Here are highlights of the book's reviews.

Here's an annotated table of contents.

Some excerpts from the book, or closely related articles, are online.
Medical Economics ran a long excerpt pulling together material from several different parts of the book, which is posted online in two parts [part one] [part two]. Policy Review excerpted the chapter on the lawyer's contingency fee, also in two online parts: [part one] [part two]. And Across the Board excerpted the chapter on class actions. Be forewarned that there are some overlaps between these excerpts. I condensed some of the book's themes into a short 1996 speech at Canada's Fraser Institute, while this Newsday op-ed reduces the book's themes into an even shorter compass.

The book's most important policy recommendation is that the United States join other countries in adopting a "loser-pays" principle in litigation. Those portions of the book are not yet online, but you can get the general idea from this June 1995 Reason article in which I discuss the idea. The Washington Post "Outlook" section excerpted the chapter deploring modern child custody law as a case in point of the dangers of letting vague standards replace clear legal rules.

Other excerpts and related articles appeared in The Public Interest, the A.B.A. Journal, Reader's Digest, the Wall Street Journal, Reason, The American Enterprise, and CEO International Strategies.
******

Aside from all the nice reviews, press coverage of the book went on and on, with repeat mentions in such venues as Time, The Economist, and the New Yorker, and a lot of foreign coverage including the London Times and Daily Telegraph. Broadcast appearances included most of the biggest talk shows, most notably Oprah Winfrey's, where I debated Harvard's Alan Dershowitz, as well as CBS This Morning, Donahue, and the Larry King radio show, where I was on for a lively two-hour debate. More details, including a partial listing of the thirty or so campuses I visited on the book, on this page.

Bumpier in its progress, but gratifying just the same, has been the progress of the ideas in the book. Within months of the book's publication, the Bush Administration had taken up many of its themes and was calling for ground-up reform of litigation. A few years later, the House Republican leadership made legal reform part of its "Contract With America", and the House in fact passed (though the Senate did not) a bill attempting to establish a loser-pays principle in many federal cases. For my testimony on loser-pays before the House, click here.

While the debate has moved perceptibly in the right direction, the situation on the ground has unfortunately not. Organized lawyerdom has easily defeated most efforts to change the litigation system in any serious way; what changes have been enacted have been mostly minor and incremental, and even they are often struck down by unsympathetic courts. Meanwhile, the ever-expanding litigation industry is learning to take down whole industries (tobacco, firearms) and few public figures are willing to stand up to its pocketbook and its political influence. Still, there is no going back to the easy assumptions, so prevalent a decade or two back, that the more litigation goes on the better off society somehow will be. Reining in the power of the litigation lobby is now an ongoing part of the public's unfinished business.

FOR FURTHER READING

Frequently updated commentary on legal issues from the book's perspective can be found at my websites Overlawyered and Point of Law.

A footnote: though the question of the overall monetary cost of litigation was not one I attempted to answer in the book, it became the subject of a little flap when defenders of the system complained that Vice President Dan Quayle had exaggerated the number. Those who followed that controversy may be interested in consulting the short piece on the subject I wrote for the San Diego Union-Tribune.