¹ On the deficiencies of American legislatures, see Robert A. Dahl, How Democratic Is the American Constitution? (New Haven 2001). It was just the best they could do in the 18^th century. Carol Barkin, A Brilliant Solution: Inventing the American Constitution (New York 2002).Google Scholar

² 1 Democracy in America: The Republic of the United States of America and Its Political Institutions Reviewed and Examined 306. This work was published in Paris in two volumes in 1835. It was promptly translated by Henry Reeves and republished in a single volume by A. S. Barnes & Co. in New York.Google Scholar

³ Exemplary and treble damages have English origins going back to the 13^th century, and probably Roman origins of an earlier time. 1 Linda L. Schlueter & Kenneth R. Redden, Punitive Damages 3 (2d ed Charlottesville 1989); Barry Nicholas, Introduction to Roman Law 210 (Oxford 1975). And see, e,g, Huckle v. Money, 95 Eng. Rep. 768 (K. B. 1763).Google Scholar

⁴ Act of July 2, 1890, 26 Stat. 209. A judicial response of the same era was set in motion by an 1889 flood that destroyed the city of Johnstown, Pennsylvania and was caused by the failure of a dam erected for recreational uses by very wealthy notables who took no responsibility for the consequences. The outcry resulted in new judge-made law imposing strict liability on the owners of bursting dams. The rapid evolution of the case law is described by Jed Handelsman Sugarman, The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age, 110 Yale L. J. 333 (2000). The story of the flood is told by David G. McCullough, The Johnstown Flood (New York 1968).Google Scholar

⁵ Bogus, Carl T., Why Lawsuits Are Good for America: Disciplined Democracy, Big Business and the Common Law 141-43 (New York 2001).Google Scholar

⁶ Thompson v. Western States Medical Center, 122 S. Ct. 1497 (2002).Google Scholar

⁷ The specific provision at issue in Thompson was the promotion of “compounded drugs” made by local pharmacists and not approved by the FDA as required by 21 U. S. C. §353a enacted as §503 of the Food & Drug Administration Modernization Act of 1997, 111 Stat. 2328.Google Scholar

⁸ On its origins, see John Leubsdorf, Toward a History of the American Rule on Attorney Fee Recovery, 47-1 Law & Contemp. Prob. 9, 17 (1984).Google Scholar

⁹ See generally Thomas D. Rowe, Jr., The Legal Theory of Attorney Fee Shifting: A Critical Overview, 1982 Duke L. J. 651.Google Scholar

¹⁰ See generally Herbert M. Kritzer, Rhetoric and Reality … Uses and Abuses … Contingencies and Certainties: The American Contingent Fee in Operation (Madison 1996).Google Scholar

¹¹ Constitution of the United States, Amendment VII.Google Scholar

¹² Indeed, each of the eleven states that had promulgated state constitutions before the federal constitution was ratified had embraced the constitutional right to jury trial in civil cases before there was a Seventh Amendment. A compilation is The Constitutions of the United States of America (E Duycinck ed., New York- 1820). There has is in no state ever been a serious discussion of its elimination.Google Scholar

¹³ About 14 million matters were handled by state courts in 1998. National Center for State Courts, Examining the Work of State Courts, 1998: A National Perspective from the Court Statistics Project 17-23 (Williamsburg 1999).Google Scholar

¹⁴ Charles Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 730 (1973); Stanton D. Krauss, The Original Understanding of the Seventh Amendment Right to Jury Trial, 33 U. Rich. L. Rev. 407 (1999).Google Scholar

¹⁵ William Blackstone affirmed that the civil jury “ever has been, and I trust ever will be, looked upon as the glory of the English law.” 3 Commentaries on the Law of England *379 (London 1768). The “glory” was largely extinguished by 1914. Michael Lobban, The Strange Life of the English Civil Jury 1837-1914 in “The Dearest Birthright of the People of England“ (John W. Cairns & Grant McLeod, eds. Oxford 2002); Joshua. Getzler, The Fate of the Civil Jury in Late Victorian England, id. at 217Google Scholar

¹⁶ Vidmar, Neil, Canadian Criminal Jury: Searching for Middle Ground, 62-2 Law & Contemp. Prob. 141 (1999); Mark Findlay & Peter Duff, The Jury Under Attack (London 1988) (re Australia).Google Scholar

¹⁷ Atiyah, P. S. & Summers, Robert, Form and Substance in Anglo-American Law: A Comparative Study in Legal Reasoning, Legal Theory and Legal Institutions 38 (New York 1987).Google Scholar

¹⁸ Charles W. Wolfram, Modern Legal Ethics 20-47 (St. Paul 1986). A recent controversy has arisen over the power of state courts to punish lawyers serving the federal government for violations of standards of professional conduct established by state law. The Congress of the United States has recently enacted legislation to assure that state law applies. For discussion, see Bruce A. Green & Fred C. Zacharias, Regulating Federal Prosecutors’ Ethics, 55 Vand. L. Rev. 381 (2002).Google Scholar

¹⁹ That body of law is synthesized in American Law Institute, Restatement (Third) of Law Governing Lawyers.Google Scholar

²⁰ See Harry P. Stumpf, American Judicial Politics (New Jersey 1998).Google Scholar

²¹ The first appearance of the opinion of the court came in the first decision rendered after the appointment of Marshall. The story is told in G. Haskins & H. Johnson, Foundations of Power: John Marshall, 1801-1815 at 207-245 (New York, 1981). There was a precedent for such a device in the opinions of the Privy Council giving advice to the Crown, but the Council was not primarily a judicial institution, at least until the Privy Council Appeals Act of 1832. Report of the Select Committee of the House of Lords on the Appellate Jurisdiction 27 (London 1872). See also John P. Dawson, The Privy Council and Private Law, 48 Mich. L. Rev. 627 (1950).Google Scholar

²² The best statement of the case for electing judges is still Frederick Grimke, The Nature and Tendency of Free Institutions 444-475 (John William Ward ed., Cambridge 1968). Grimke was a member of the Ohio Supreme Court; his book was first published in 1841,Google Scholar

²³ Smith Kline & French Lab. Ltd v. Bloch, [1983] 2 All ER 72, 74 (C. A.).Google Scholar

²⁴ An account of the Bhopal tragedy is Dan Kurzman, A Killing Wind: Inside Union Carbide and the Bhopal Catastrophe (New York 1987).Google Scholar

²⁵ In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India, 809 F. 2d 195 (2d Cir. 1987).Google Scholar

²⁶ Upendra Baxi, Introduction: Towards the Revictimization of the Bhopal Victims, in Inconvenient Forum and Convenient Catastrophe: The Bhopal Case 1, 1 (U. Baxi, ed., Bombay 1986). For an account of the availability of tort remedies in India fifteen years later, see J. N. Pandey & Vijay Kumar Pandey, Law of Torts 3 (Allahabad 2002).Google Scholar

²⁷ Punitive damages were provided in the Code promulgated by Hammurabi four millennia ago.1 Linda L. Schlueter & Kenneth R. Redden, Punitive Damages 3 (2d ed Charlottesville 1989); Barry Nicholas, Introduction to Roman Law 210 (Oxford 1975). And see, e,g, Huckle v. Money, 95 Eng. Rep. 768 (K. B. 1763)Google Scholar

²⁸ Liebeck v. McDonald's Restaurants, Inc., 1995 WL 360309 (D.N.M. 1994) (on remand).Google Scholar

²⁹ See Michael McCann, William Haltom, & Ann Bloom, Java Jive: Genealogy of a Judicial Icon, 56 U. Miami L. Rev. 113 (2001).Google Scholar

³⁰ The data is old. Gallup Organization, Attitudes Toward The Liability and Litigation System: A Survey of the General Public and Business Executives 54-55 (New York 1982).Google Scholar

³¹ Honda Motor Co. v. Oberg, 517 U. S. 1219 (1996).Google Scholar

³² BMW of North America, Inc. v. Gore, 517 U. S. 559 (1995).Google Scholar

³³ In re Exxon Valdez, 270 F. 3d 1215 (9^th cir. 2001).Google Scholar

³⁴ 42 U. S. C. §7604.Google Scholar

³⁵ 33 U. S. C. §1365. For a summary of the different provisions, see Michael D. Axline, Environmental Citizen Suits, Appendix A (Salem NH 1991).Google Scholar

³⁶ Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865 (1984).Google Scholar

³⁷ The story is told by Robert R. Kuehn, Denying Access to Legal Representation: The Attack on the Tulane Environmental Law Clinic, 4 Wash. U. J. L. & Policy 33 (2000).Google Scholar

³⁸ Legal Services Corporation v. Velazquez, 531 U. S. 533 (2001).Google Scholar

³⁹ For a particularly acid comment on the features of American law that are the subject of this paper, see Richard W. Dusenberg, Views on the American Legal System, in United States/Japan Commercial Law and Trade 431 (V. Kusuda-Smick ed., Ardsley-on-Hudson 1989). Dusenberg quotes an American CEO: “If we can take the lawyers in America –and I speak for all CEOs – and move them to Japan, the U. S. could be competitive in 24 hours. Twenty four hours later, Japan's productivity would go down, its trade balance would go down, and its legal bills would go up.” This comment was made at a time when the Japanese economy was at its apex; it has not been repeated in more recent times. The Manhattan Institute is funded by multi-national enterprise to pursue the aim of protecting business from American law by perpetuating the myth that America would prosper even more if only Americans would put greater faith in business management‥ See, e.g., Walter K. Olson, The Litigation Explosion: What Happened When America Unleashed the Lawsuit (New York 1991). Some responses are Stephen Daniels & Joanne Martin, Civil Juries and The Politics of Reform (1995); Ellen E. Sward, The Decline of the Civil Jury 101-145 (Durham 2001); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 Denv. U. L. Rev. 77 (1993); Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 Md. L. Rev. 1093, 1109-1112 (1996); Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System – And Why Not?, 140 U. Pa. L. Rev. 1147 (1992). Not all who disdain the system are business managers or their delegates at the Manhattan Institute. See, e.g., Patrick Atiyah, The Damages Lottery (Oxford 1997).Google Scholar