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
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.