1 Kagan, Robert A., “Adversarial Legalism and American Government,” 10 J. Pol'y Analysis & Mgmt. 309 (1991). There I also briefly discussed possibilities for developing legal institutions that would preserve much of the responsiveness associated with adversarial legalism but without generating so much divisiveness, inefficiency, and injustice.Google Scholar

2 Galanter, Marc, “Law Abounding: Legalization around the North Atlantic,” 55 Mod. L. Rev. 1 (1992).Google Scholar

3 Wiegand, Wolfgang, “The Reception of American Law in Europe,” 39 Am. J. Comp. L. 229 (1991); David, M. Trubek, , Dezelay, Yves, Buchanan, R., & David, J., “Global Restructuring and the Law: The Internationalization of Legal Fields” (Working Paper, Global Studies Research Program, University of Wisconsin, Madison, Aug. 1993).CrossRefGoogle Scholar

4 Dewees, D., Trebilcock, M., & Coyte, P., “The Medical Malpractice Crisis: A Comparative Empirical Perspective,” 54 Law & Contemp. Probs. 217 (1991).CrossRefGoogle ScholarPubMed

5 For example, although the percentage growth of medical malpractice claims in Canada in the 1970s and 1980s paralleled the American increase, in 1986 claims in the United States were 9 times as frequent (17 per 100 physicians vs. 1.8 in Canada) and average medical malpractice insurance premiums were 11 times as high ($14,600 per year vs. $1,126 in Canada, in 1990 US. dollars). Id.Google Scholar

6 See Joseph Badaracco, Loading the Dice: A Five Country Study of Vinyl Chloride Regulation (Boston: Harvard Business School Press, 1985) (“Badaracco, Loading the Dice”); David Bayley, Forces of Order: Police Behavior in Japan and the United States (Berkeley: University of California Press, 1976); John Braithwaite, To Punish or Persuade: Enforcement of Cod Mine Safety (Albany: SUNY Press, 1985); P. Day & R. Klein, “The Regulation of Nursing Homes: A Comparative Perspective,” 65 Milbank Q. 303 (1987); R. Brickman, S. Jasanoff, & T. Ilgen, Controlling Chemicals: The Politics of Regulation in Europe and the United States (Ithaca, N.Y.: Cornell University Press, 1985) (“Brickman et al., Controlling Chemicals”); Sheila Jasanoff, Risk Management and Political Culture (New York: Russell Sage Foundation, 1986); Steven Kelman, Regularing America, Regulating Sweden: A Comparative Study of Occupational Safety and Health Poky (Cambridge, Mass.: MIT Press, 1981); David Kirp, Doing Good by Doing Little: Race and Schooling in Britain (Berkeley: University of California Press, 1979); id., “Professionalization as a Policy Choice: British Special Education in Comparative Perspective,” 34 World Politics 137 (1982); John Langbein, “The German Advantage in Civil Procedure,” 52 U. Chi. L. Rev. 823 (1985); Lennart J. Lundqvist, The Hare and the Tortoise: Clean Air Policies in the United States and Sweden (Ann Arbor: University of Michigan Press, 1980); Lois Quam et al., “Medical Malpractice in Perspective,” 294 Brit. Med. J. 1529, 1597 (1987); Gary Schwartz, “Product Liability and Medical Malpractice in Comparative Context,” in Peter Huber & R. Litan, eds., The Liability Maze (Washington, D.C.: Brookings Institution, 1991); Takao Tanase, “The Management of Disputes: Automobile Accident Compensation in Japan,” 24 Law & Soc'y Rev. 651 (1990); David Vogel, National Styles of Regulation: Environmental Policy in Great Britain and the United States (Ithaca, N.Y.: Cornell University Press, 1986) (“Vogel, National Styles”); Derek Bok, “Reflections on the Distinctive Character of American Labor Laws,” 84 Harv. L. Rev. 1461 (1971); Robert J. Flanagan, Labor Relations and the Litigation Explosion (Washington, D.C.: Brookings Institution, 1987); Mary Ann Glendon, Abortion and Divorce in Western Law (Cambridge, Mass.: Harvard University Press, 1987); Robert Reich, “Bailout: A Comparative Study in Law and Industrial Structure,” 2 Yale J. Reg. 163 (1985); Harvey Teff, “Drug Approval in England and the United States,” 33 Am. J. Comp. L. 567 (1985).Google Scholar

7 Kagan, , 10 J. Pol'y Analysis & Mgmt.Google Scholar

8 This does not mean, of course, that Americans always define their problems in legal terms and always seek legal redress. Clearly, they don't. Thomas B. Metzloff, “Researching Litigation: The Medical Malpractice Example,” 51 Law & Contemp. Probs. 199 (1988); Saks, Michael J., “Do We Really Know Anything about the Behavior of the Tort Litigation System—And Why Not?” 140 Pa. L. Rev. 1147 (1992); Kagan, Robert A., “The Routinization of Debt Collection: An Essay on Social Change and Conflict in the Courts,” 18 Law & Soc'y Rev. 323 (1984). And there is enormous variation in rates of recourse to legal action across American subcultures, regulatory programs, and types of grievance. R. Miller & A. Sarat, “Grievances, Claims and Disputes: Assessing the Adversary Culture,”15 Law & Soc'y Rev. 525 (1980–81); David M. Engel, “The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community,” 18 Law & Soc'y Rev. 551 (1984); David Caplovitz, Consumers in Trouble: A Study of Debtors in Default (New York: Free Press, 1974); Robert A. Kagan, “Understanding Regulatory Enforcement,” 11 Law & Pol'y 89 (1989). The point is that in comparative, cross-national terms, adversarial legalism is more prevalent in the United States.Google Scholar

9 The typology I suggest draws heavily on the one developed by Mirjan Damaska, The Faces of Justice and Stare Authority: A Comparative Approach to the Legal Process (New Haven, Conn.: Yale University Press, 1986) (“Damaska, Faces of Justice”), and is also indebted to Jeny L. Mashaw, Bureaucratic Jutice: Managing Social Security Disability Claims (New Haven, Conn.: Yale University Press, 1983); J. Thibaut & Laurens Walker, “A Theory of Procedure,” 66 Cal. L. Rev. 541 (1978); and Kirp, 34 World Politics 137 (1982).Google Scholar

10 Langbein, , 52 U. Chi. L. Rev. (cited in note 6).Google Scholar

11 P. S. Atiyah & R. Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal institutions (Oxford: Clarendon Press, 1987) (“Atiyah & Summers, Form and Substance”).Google Scholar

12 Several surveys and experiments have shown that attorneys and insurance claims managers assign widely different settlement values to civil cases. Marc Galanter, “The Quality of Settlements,” 1988 J. Dispute Resolution 55; Gerald Williams, Legal Negotiation and Settlement 6, 111–14 (St. Paul, Minn.: West Publishing Co., 1983); Douglas B. Rosenthal, Lawyer and Client: Who's in Charge? 202–7 (New York: Russell Sage Foundation, 1974); Saks, 140 Pa. L. Rev. 1215, 1223.Google Scholar

13 Badaracco, , Loading the Dice; Brickman et al., Controlling Chemicals; Vogel, National Styles; Teff, 33 Am. J. Comp. L. (all cited in note 6).Google Scholar

14 Carol J. Greenhouse, Praying for Justice: Faith, Order and Community in an American Town (Ithaca, N.Y.: Cornell University Press, 1986); Robert C. Ellickson, “Of Coase and Cattle: Dispute Resolution among Neighbors in Shasta County,” 38 Stan. L. Rev. 623 (1986); Stewart Macaulay, “Non-contractual Relations in Business: A Preliminary Study,” 28 Am. Soc. Rev. 55 (1963). See also references cited in note 8.Google Scholar

15 Kagan, , 18 Law & Soc'y Rev. (cited in note 9).Google Scholar

16 Feeley, Malcolm M., The Process Is the Punishment: Handling Cases in a Lower Criminal Court (New York: Russell Sage Foundation, 1979); Stewart Macaulay, “Lawyers and Consumer Protection Laws,” 14 Law & Soc'y Rev. 115 (1979).Google Scholar

17 Sander, Richard H., “Elevating the Debate on Lawyers and Economic Growth,” 17 Law & Soc. Inquiry 659, 665 (1992). calculates that the United States currently spends about $100 billion per year on legal services (up from $30 billion, measured in 1992 dollars, in 1970).Google Scholar

18 In the 1980s, more than half of all state governors were lawyers, and more than half of all U.S. presidents have been lawyers. Mark C. Miller, “Lawyers and American Politics: An Interdisciplinary Perspective” (presented at Law & Society Association annual meeting, 1992).Google Scholar

19 In the 1980s, slightly more than 60% of U.S. senators and 44% of U.S. House members were lawyers (somewhat fewer than in 1955, 1965, and 1975). Id. at 6.Google Scholar

20 A majority of the heads of departments in President Clinton's cabinet are lawyers. More than two-thirds of presidential appointees to head the EPA and to serve on the EEOC, FCC, FTC, NLRB, and SEC in recent decades have been lawyers. Id. at 3.Google Scholar

21 Richard L. Abel, American Lawyers (New York: Oxford University Press, 1989); Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor (Chicago: University of Chicago Press, 1988).Google Scholar

22 Shamir, Ronen, “Professionalism and Monopoly of Expertise: Lawyers and Administrative Law, 1933–1937,” 27 Law & Soc'y Rev. 361 (1993).CrossRefGoogle Scholar

23 Nelson W. Polsby, “The Social Composition of Congress,” in U. Thaysen et al., eds., The U.S. Congress and the German Bundestag: Comparisons of Democratic Processes 114 (Boulder, Col.: Westview Press, 1990): “The occupational culture of Congress is dominated by lawyers' ways and lawyers' jargon. Committees are organized to elicit information by ‘holding hearings’ in which ‘witnesses’‘testify’ and are examined ‘on the record’ by questions from members and staff. At least one high-ranking staff member, and usually more than one, is a lawyer and is known as counsel’ to the committee”.Google Scholar

24 Kagan, , 10 J. Policy Analysis & Mgmt. (cited in note 1).Google Scholar

25 Robert L. Lineberry, Government in America: People, Politics, and Policy 52–60 (2d ed. Boston: Little, Brown, 1983).Google Scholar

26 Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought since the Revolution (New York: Harcourt, Brace & World, 1955). Some scholars have argued that Hartz and others have neglected the extent to which profoundly illiberal political ideas, such as nativism, sexism, and racism, have contended with liberalism in American political culture and law. See, e.g., Rogers M. Smith, “Beyond Tocqueville, Myrdal, and Hartz: The Multiple Traditions in America,” 87 Am. Pol. Sci. Rev. 549 (1993). Still, viewed comparatively, liberalism is what best distinguishes the American political culture from that of most other economically advanced democracies.Google Scholar

27 Lawrence Goodwyn, The Populist Moment: A Short History of the Agrarian Revolt in America (New York: Oxford University Press, 1978).Google Scholar

28 Alexis de Tocqueville, 1 Democracy in America 290 (1835; New York: Vintage Books, 1945).Google Scholar

29 Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (New York Cambridge University Press, 1982). Judicial power, too, was fragmented, rather than centralized and hierarchically ordered. American trial court judges shared power with locally selected juries. Most judges were selected by county-level political and electoral processes—in sharp contrast to European methods, which entailed lengthy apprenticeships in a centrally controlled, professionalized, judicial hierarchy. American judges thus were often former politicians or politically active attorneys, inclined not toward a formalistic but toward a pragmatic, problem-solving approach to the law. And in such a fluid, decentralized, somewhat unpredictable court system, the skills of private advocates could be particularly influential, enhancing lawyers' role in shaping the law and in resolving and forfending disputes.Google Scholar

30 Morton Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass.: Harvard University Press, 1977) (“Horwitz, Transformation of American Law”).Google Scholar

31 Roe, Mark, “A Political Theory of American Corporate Finance,” 91 Colum. L. Rev. 10 (1991); Lester Thurow, “Communitarian vs. Individualistic Capitalism,” 2 Responsive Community, Fall 1992, at 24.CrossRefGoogle Scholar

32 Kagan, , 10 J. Policy Analysis & Mgmt. (cited in note 1).Google Scholar

33 Peter Schuck, Suing Government: Citizen Remedies for Official Wrongs 199–202 (New Haven, Conn.: Yale University Press, 1983) (“Shuck, Suing Government”), uses federal court statistics on “civil rights cases” to illustrate the increase in suits against government. These increased from 280 filings in 1960 to about 27,000 in 1980. Since 1976, Schuck notes, almost one of three private federal questions filed in U.S. district courts has been a civil rights action against a state or federal official. Estimates based on federal court statistics indicate that federal courts of appeal in 1980 decided some 2,000 cases involving seriously contested constitutional issues, compared to perhaps 300 in 1960. Robert A. Kagan, “Constitutional Litigation in the United States,” in R. Rogowski & T. Gawron, eds., Constitutional Courts in Comparison (Gummarsbach: Theodor Heuss Academie, 1987). The volume and rate of state appellate and federal court cases involving public schools, roughly stable from 1920 through 1960, doubled in the 1967–81 period. D. Tyack & A. Benavot, “Courts and Public Schools: Education Litigation in Historical Perspective,” 19 Law & Soc'y Rev. 339, 348 (1985).Google Scholar

34 Galanter, Marc & Rogers, Joel, “The Transformation of American Business Disputing? Some Preliminary Observations” (delivered at Law & Society Association annual meeting, 1988); T. Dungworth, M. Galanter, & J. Rogers, “Corporations in Court: Recent Trends in American Business Litigation” (delivered at Law & Society Association annual meeting, 1990); William Nelson, “Contract Litigation and the Elite Bar in New York City, 1960–1980,” 39 Emory L. Rev. 441, 446 (1990); Ross Cheit, “Corporate Ambulance Chasers: The Charmed Life of Business Litigation,” 11 Stud. L., Pol. & Soc'y 119 (1991).Google Scholar

35 Sander, Richard H. & Williams, E. Douglas, “ Why Are There So Many Lawyers? Perspectives on a Turbulent Market ,” 14 Law & Soc. Inquiry 431, 434–35 (1989).CrossRefGoogle Scholar

36 Bruce Ackerman & W. Hassler, Clem Coal/Dirty Air (New Haven, Conn.: Yale University Press, 1981); E. Bardach & R. Kagan, Going by the Book: The Problem of Regulatory Unreasonableness (A Twentieth Century Fund Report) (Philadelphia: Temple University Press, 1982).Google Scholar

37 Samuel Huntington, American Politics: The Promise of Disharmony (Cambridge, Mass.: Belknap Press, 1981).Google Scholar

38 Aaron Wildavsky, “A World of Difference—The Public Philosophies and Political Behaviors of Rival American Cultures,” in Anthony King, ed., The New American Political System (2d version. Washington, D.C.: AEI Press, 1990); D. Polisar & A. Wildavsky, “From Individual Blame to System Blame: A Cultural Analysis of Historical Change in the Law of Torts,” 1 J. Pol'y Hist. 122 (1989).Google Scholar

39 Lawrence M. Friedman, Total Justice (New York: Russell Sage Foundation, 1985) (“Friedman, Total Justice”).Google Scholar

40 The general expectation of compensation that Friedman discerns does not mean that most Americans expect to be compensated for all harms, regardless of fault. Surveys show that at least for injuries arising in contexts other than motor vehicle accidents, most citizens do not automatically blame others or initiate lawsuits. Deborah Hensler et al., Compensation for Accidental Injuries in the United States (Santa Monica, Cal.: RAND Institute for Civil Justice, 1991). Still, there is little doubt that citizens, on balance, now expect and even demand governmental or legal remedies for kinds of harms or losses (from natural disasters to bank failures to discrimination) that their grandparents would have accepted fatalistically.Google Scholar

41 Seymour Martin Lipset, “A Weak Concept of the Common Good,” 1 Responsive Community, Fall 1991, at 81, and id., Continental Divide: The Values and Institutions of the United States and Canada (New York: Routledge, 1990).Google Scholar

42 Griffin, Stephen, “Bringing the State into Constitutional Theory: Public Authority and the Constitution,” 16 Law & Soc. Inquiry 659, 701–9 (1991), provides a review and compelling synthesis of the literature on declining popular trust of government and structural impediments to governmental action.CrossRefGoogle Scholar

43 Terry Moe, “The Politics of the Bureaucratic State,” in J. Chubb & P. Peterson, eds., Can the Government Govern? (Washington, D.C.: Brookings Institution, 1989).Google Scholar

44 Atiyah & Summers, Form and Substance (cited in note 11).Google Scholar

45 Friedman, L., Kagan, R., Cartwright, B. & Wheeler, S., “State Supreme Courts: A Century of Style and Citation,” 33 Stan. L. Rev. 773 (1981).CrossRefGoogle Scholar

46 Schuck, Peter, “Legal Complexity: Some Causes, Consequences, and Cures,” 42 Duke L.J. 1, 27–30 (1992).CrossRefGoogle Scholar

47 Roe, , 91 Colum. L. Rev. 10, and Thurow, 2 Responsive Community (both cited in note 31); but see Coffee, John C. Jr., “Liquidity versus Control: The Institutional investor as Corporate Monitor,” 91 Colum. L. Rev. 1277 (1991).CrossRefGoogle Scholar

48 Rogers, Joel, “Divide and Conquer: Further Reflections on the Distinctive Character of American Labor Laws,” 1990 Wis. L. Rev. 1; Kagan, Robert A., “How Much Does Law Matter? Labor Law, Competition, and Waterfront Labor Relations in Rotterdam and U.S. Ports,” 24 Law & Soc'y Rev. 35 (1990).Google Scholar

49 For an interesting comparative case study, see Reich, 2 Yale J. Reg. 163 (cited in note 6).Google Scholar

50 Gilson, Ronald J., “How Many Lawyers Does It Take to Change an Economy 17 Law & Soc. Inquiry 637, 638 (1992).Google Scholar

51 Kagan, R. & Rosen, R., “The Social Significance of Large Firm Law Practice,” 37 Stan. L. Rev. 399 (1985).CrossRefGoogle Scholar

52 John P. Heinz, “The Power of Lawyers,” 17 Ga. L. Rev. 891 (1983); Robert Nelson, Partners with Power (Berkeley: University of California Press, 1988); Robert Nelson & John P. Heinz, “Lawyers and the Structure of Influence in Washington,” 22 Law & Soc'y Rev. 237 (1988).Google Scholar

53 One noteworthy exception is Jerry Mashaw and Daniel Harft's study of the National Highway Safety Administration (NHTSA). There, top legal officials regularly clashed with engineers concerning regulatory strategy. Lawyers tended to emphasize recalls rather than mandatory design standards. Lawyers, moreover, clashed with engineers as to whether recalls were warranted in particular cases. To the lawyers, a primary consideration was whether they could “win in court.” Jerry Mashaw & Daniel Harfst, The Struggle for Auto Safety 183 (Cambridge, Mass.: Harvard University Press, 1990). See also Robert A. Karzmann, Regulatory Bureaucracy: The Federal Trade Commission and Antitrust Policy (Cambridge, Mass.: MIT Press, 1980).Google Scholar

54 Nader, Laura, “The ADR Explosion—The Implications of Rhetoric in Legal Reform,” 8 Windsor Y.B. Access to Just. 269 (1988).Google Scholar

55 For a thorough account, see Schuck, Suing Government (cited in note 33).Google Scholar

56 Schwab, S. & Eisenberg, T., “Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant,” 73 Cornell L. Rev. 719 (1988).Google Scholar

57 Jeremy Rabkin, Judicial Compulsions: How Public Law Distorts Public Policy (New York: Basic Books, 1989).Google Scholar

58 By “legal culture” I refer to the discourse, ideas, and attitudes about law and litigation that pervade the world of law teachers, practicing lawyers, judges, legislators, administrative officials, law enforcement officials, and legal writers. 1 wish to distinguish this “elite” legal culture from the popular or “mass” legal culture that figures prominently in the work of Lawrence M. Friedman, as in his Total Justice (cited in note 39) and The Republic of Choice: Law, Authority and Culture (Cambridge, Mass.: Harvard University Press, 1990). Of course, popular legal culture influences elite legal culture and vice versa. Law students watch “L.A. Law” on television and lawyers serve as consultants to “L.A. Law” writers. But for systematic survey evidence that there are striking differences between lawyers' and mass attitudes concerning core legal values (due process, civil liberties), see H. McClosky & A. Brill, Dimensions of Tolerance: what Americans Believe about Civil Liberties (New York: Russell Sage Foundation, 1983).Google Scholar

59 Kirp, , 34 World Politics (cited in note 6).Google Scholar

60 D. Neal & D. Kirp, “The Allure of Legalization Reconsidered: The Case of Special Education,” in D. Kirp & D. Jensen, eds., School Days, Rule Days: The Legalization and Regulation of Education 355 (New York: Falmer Press, 1986) (“Neal & Kirp, ‘Allure of Legalization’”): “Adversariness and legalism seem to characterize the conduct of hearings. Rather than adopting an informal negotiating format, the due process hearings tend to provide a forum for culmination of long-term bad relations between the school and the parents involved. Involving lawyers aggravates the situation, rendering proceedings more legalistic. Emphasis on compliance with procedural matters such as notices, signatures, and time deadlines offers an easy substitute for harder substantive questions”.CrossRefGoogle Scholar

61 R. Shep Melnick, Between the Lines: Interpreting Welfare Rights (Washington, D.C.: Brookings Institution, 1993).Google Scholar

62 Neal & Kirp, “Allure of Legalization”.Google Scholar

63 For example, staff attorneys in national environmental groups told a researcher that decisions to litigate are for the most part made in a decentralized way by the lawyers, usually “by the individual advocates who are working on the particular matter.” Cary Coglianese, “Environmental Litigation as a Political Strategy” (presented at Law & Society Association annual meeting, 1993).Google Scholar

64 During the 1930s, many small firm labor lawyers opposed New Deal legislation that would divert disputes over unfair labor practices from courts to more informal, lawyerless administrative forums. Shamir, 27 Law & Soc'y. Rev. (cited in note 22).Google Scholar

65 See Kagan & Rosen, 37 Stan. L. Rev. 399 (cited in note 51) (corporate lawyers as “conduits”), and William K. Muir, Jr., Law and Attitude Change 112 (Chicago: University of Chicago Press, 1967) (“Muir, law and Attitude Change”) (school board lawyer who successfully promoted compliance with Supreme Court decision barring prayer in public schools).Google Scholar

66 Gilson, Ronald, “Value Creation by Business Lawyers: Legal Skills and Asset Pricing,” 94 Yale L.J. 239 (1984); Kagan & Rosen, 37 Stan. L. Rev. (cited in note 51).CrossRefGoogle Scholar

67 Reporting on his interviews of Wisconsin attorneys in connection with their handling of consumer claims, Macaulay, 14 Law & Soc'y Rev. (cited in note 16), says: A number of attorneys suggested that a lawyer has an obligation to judge the true merits of a client's case and to use only reasonable means to solve problems… For example, several attorneys were very critical of other members of the bar who had used the Wisconsin Consumer Protection Act so that a lender who had violated what they saw as a “technical” requirement of the statute would not be paid for a car which the consumer would keep. While this might be the letter of the law, apparently a responsible lawyer would negotiate a settlement whereby the consumer would pay for the car but would pay less as a result of the lender's error.Google Scholar

68 Sarat, Austin & Felstiner, William L. F., “Law and Strategy in the Divorce Lawyer's Office,” 20 Law & Soc'y Rev. 93 (1986).CrossRefGoogle Scholar

69 Shamir, , 27 Law & Soc'y Rev. at 374 (cited in note 22).Google Scholar

70 Pollock, Ellen Joan, “Mediation Firms Alter the Legal Landscape,” Wall St. J., 22 March 1993, at B1, B6.Google Scholar

71 R. Keeton & J. O'Connell, Basic Protection for the Traffic Victim: A Blueprint for Reforming Automobile Insurance (Boston: Little, Brown, 1965); Stephen D. Sugarman, Doing away with Personal Injury Law: New Compensation Mechanism for Victims, Consumers, and Business (New York: Quorum Books, 1989).Google Scholar

72 Alabama Coalition for Equity v. Hunt (1993), Circuit Court for Montgomery, Ala., Civil Action No. CV-90-883-R. (excerpted in Edward Felsenthal, “School System in Alabama Gets ‘F’ from Court,” Walt St. J., 6 April 1993, at B1). See also Peter Applebome, “Its Schools Ruled Inadequate, Alabama Looks for Answers,” N.Y. Times, 9 June 1993, at A1, A13.Google Scholar

73 Atiyah, & Summers, , Form and Substance (cited in note 11); Kagan, R., “What Makes Uncle Sammy Sue 21 Law & Soc'y Rev. 717, 728–30 (1988).Google Scholar

74 Kagan, R., Friedman, L., Cartwright, B., and Wheeler, S., “The Evolution of State Supreme Courts,” 76 Mich. L. Rev. 961, 980–84 (1978).Google Scholar

75 G. Edward White, The American Judicial Tradition (New York: Oxford University Press, 1976).Google Scholar

76 Felsenthal, Wall St. J., 6 April 1993, at B1.Google Scholar

77 Fiss, Owen, “Against Settlement,” 93 Yale L.J. 1073, 1086–87 (1984), “Someone has to confront the betrayal of our deepest ideals and be prepared to turn the world upside down to bring those ideals to fruition.” And that someone, Fiss argues, should be the courageous judge.CrossRefGoogle Scholar

78 There are some surveys that address different but somewhat related issues. Charles Kelso, The AALS Study of Part-Time Legal Education (Washington, D.C.: Association of American Law Schools, 1972), found that teachers at larger “high resource schools” (primarily university law schools) thought that law schools should teach a more theoretical (and presumably more critical) approach to law, while those at “low resource” (usually proprietary) schools tended to think they should teach in a more positivist, law-applying manner. A Carnegie Commission on Higher Education survey (in 1969 and 1974) found that at least two-thirds of professors in the 20 top-ranked law schools agreed with the proposition that their institutions “should be actively involved in solving social problems.” More than half of American law professors, and higher proportions in the top 20 law schools, identified themselves as politically “left or liberal,” and only small percentages as “moderately or strongly conservative,” which put them far to the left of most other academic and professional faculties. Carl Auerbach, “The Silent Opposition of Professors and Graduate Students to Preferential Affirmative Action Programs: 1969 and 1975,” 72 Minn. L. Rev. 1233 (1988).Google Scholar

79 Emphasis added. J. Willard Hurst, Law and the Conditions of Freedom in the Nineteenth Century United States (Madison: University of Wisconsin Press, 1956); Horwitz, Transformation of American Law (cited in note 30).Google Scholar

80 Atiyah, & Summers, , From and Substance 391 (cited in note 11): “[T]he primary aim is to teach the student a methodology—how to construct, analyze, compare, evaluate, and criticise arguments and decisions (including rules) and to ‘project’ lines of judicial decisions and legislation. In this way the instructor implicitly inculcates faith in the power of substantive reasoning, in policy arguments, rather than in the mere arbitrium of formal rules”.Google Scholar

81 Michael Saks systematically compared American law reviews published in 1960 with those published in 1980. He found that in 1960 “the ratio of articles criticizing [the legal status quo] to articles defending was 0.84—for every article defending there was less than one article criticizing. For 1985 articles, the ratio had risen to 2.59—more than two and a half articles criticizing doctrine for every article defending it.” Saks, “Law Journals: Their Shapes and Contents, 1960 and 1985” at 5–6 (presented at Association of American Law Schools annual meeting, 1989).Google Scholar

82 The indeterminacy of rules and precedents was stressed by American Legal Realist scholars in the late 1920s and 1930s. It took another generation or two, however, before their views came to dominate legal education, forming the basic ground on which scholars of different philosophical camps sought new theories on which to base law. Today, reviewing the last decade's debates among the leading schools of legal thought, one professor concluded, “Now all sides agree that ‘in some ultimate sense law … is unavoidably political.’” Michael Wells, “Behind the Parity Debate: The Decline of the Legal Process Tradition in the Law of the Federal Courts,” 71 Boston U. L. Rev. 609 (1991) (quoting Richard Posner, “The Decline of law as an Autonomous Discipline: 1962–1987,” 100 Harv. L. Rev. 761 (1987).Google Scholar

83 Sarat, & Felstiner, , 20 Law & Soc'y Rev. 93 (cited in note 68).CrossRefGoogle Scholar

84 Richard Moll, The Lure of the Law 10 (New York: Viking Press, 1990).Google Scholar

85 Neal & Kirp, “Allure of Legalization” at 357 (cited in note 60).Google Scholar

86 Damaska, Faces of Justice (cited in note 9).Google Scholar

87 Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).Google Scholar

88 Emily Couric, “Profiles in Power,” Nat'l L.J., 15 April 1985, Spec. Rep., at 19.Google Scholar

89 Owen, Citing David, “Punitive Damages in Products Liability Litigation,” 74 Mich. L. Rev. 1257 (1956), “an article said to have been cited within a few years in at least 20 jurisdictions.” Atiyah & Summers, Form and Substance 401–2 (cited in note 11).CrossRefGoogle Scholar

90 Priest, George, “The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modem Tort Law,” 14 J. Legal Stud. 461 (1985). But see Schwartz, Gary, “The Beginning and the Possible End of the Rise of Modern American Tort Law,” 26 Ga. L. Rev. 601 (1992).CrossRefGoogle Scholar

91 Rubin, Edward, “Thinking Like a Lawyer, Acting Like a Lobbyist: Some Notes on the Process of Revising UCC Articles 3 and 4,” 26 Loy. L.A. L. Rev. 743 (1993). Rubin's account does indicate, however, that both ALI as an institution and individual law professors not infrequently lobby legislatures for the changes they prefer.Google Scholar

92 It is not only in the United States, of course, that legal scholars are influential. See, e.g., Martin Weston, An English Reader's Guide to the French Legal System 117 (New York: Berg, 1991); John Henry Merryman, The Civil Law Tradition 56 (2d ed. Palo Alto, Cal.: Stanford University Press, 1985). What matters for our purposes is whether the approach to law recommended by the scholars fosters adversarial legalism, and that, far more than their French or German counterparts, is what the American professoriat tends to do.Google Scholar

93 Edward Felsenthal, “Disabilities Act Is Being Invoked in Diverse Cases,” Wall St. J., 31 March 1993, at B1.Google Scholar

94 Id.Google Scholar

95 Atiyah & Summers, From and Substance 381–82.Google Scholar

96 Peter Huber, “Environmental Hazards and Liability Law,” in R. Litan & C. Winston, eds., Liability: Perspectives and Poky (Washington, D.C.: Brookings Institution, 1988).Google Scholar

97 James Dertouzos et al., The Legal and Economic Consequences of Wrongful Termination (Santa Monica, Cal.: RAND Institute for Civil Justice, 1992).Google Scholar

98 For an insightful account of how lawyers help build acceptance for controversial decisions, see Muir, Law and Attitude Change (cited in note 65) (school board lawyer and the Supreme Court's school prayer decision).Google Scholar

99 Abigail Themstrom, Whose Votes Count? Affirmative Action and Minority Voting Rights (Cambridge, Mass.: Harvard University Press, 1987).Google Scholar

100 Serge Taylor, Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform (Palo Alto, Cal.: Stanford University Press, 1984). Judicial interpretations of NEPA helped reinforce the role of environmental specialists in the Forest Service and the Corps of Engineers, but also made adversarial legalism a recurrent feature of governmental efforts to build highways and license power plants, implement forestry plans, dredge harbors, construct waste disposal facilities, and issue offshore oil exploration leases.Google Scholar

101 R. Summers & M. Taruffo, “Interpretation and Comparative Analysis,” in D. N. MacCormick & R. Summers, eds., Interpreting Statutes: A Comparative Study (Aldershot: Dartmouth Publishing, 1991).Google Scholar

102 O'Connor, K. & Epstein, L., “Bridging the Gap between Congress and the Supreme Court: Interest Groups and the Erosion of the American Rule Governing Awards of Attorneys' Fees,” 28 W. Pol. Q. 238, 239–40 (1985).Google Scholar

103 Rabin, Robert L., “Lawyers for Social Change: Perspectives on Public Interest Law,” 28 Stan. L. Rev. 207 (1976).CrossRefGoogle Scholar

104 O'Connor, & Epstein, , 38 W. Pol. Q. at 241–45; Greve, Michael, “Environmentalism and Bounty Hunting,” 97 Pub. Interest 15 (1989). According to the Council on Competitiveness established by the Bush administration, by 1990 Congress had enacted more than 150 one-way fee-shifting statutes, under which plaintiffs who prevail can recover lawyers' fees from losing defendants, while victorious defendants get no such recovery.Google Scholar

105 For selected accounts of activist public interest lawyering that extended adversarial legalism into new areas of welfare, educational, regulatory, mental health, and penal policy, see W. Robert Curtis, “The Deinstitutionalization Story,” Pub. Interest, Fall 1986, at 34; Robert Mnookin, ed., In the Interests of Children: Advocacy, Law Reform and & Policy (New York: W. H. Freeman, 1985); Jeremy Rabkin, Judicial Compulsions: How Public Law Distorts Public Policy (New York: Basic Books, 1989); John J. Dilulio, Jr., ed., Courts, Corrections and the Constitution (New York: Oxford University Press, 1990).Google Scholar

106 See Robert Rabin, “Institutional and Historical Perspectives on Tobacco Tort Liability,” in R. Rabin & S. Sugarman, eds., Smoking Policy: Law, Politics, and Culture 110, 128 n.27 (New York: Oxford University Press, 1993) (discussing Tobacco Products Liability Project); David Stipp, “Dogma in Doubt: Extent of Lead's Risk to Kids, Need to Remove Paint,” Wall St. J., 16 Sept. 1993, at A1, A12 (on newsletter concerning lead litigation); Bill Richards, “Elusive Threat: Electric Utilities Brace for Cancer Lawsuits Though Risk Is Unclear,” Wall St. J., 5 Feb. 1992, at A1 (computerized data bank by coalition of law firms named “Electromagnetic Radiation Case Evaluation Team”).Google Scholar

107 Andrew Blum, “Plaintiffs' Activists Celebrate,” Nat'l L.J., 19 Oct. 1992, at 1.Google Scholar

108 Suzanne Weaver, “Anti-trust Division of the Department of Justice,” in James Q. Wilson, ed., The Politics of Regulation (New York: Basic Books, 1980).Google Scholar

109 Arthur Maass, “Public Policy by Prosecution,” Pub. Interest, Fall 1987, at 107, 114.Google Scholar

110 Philippe Nonet, Administrative Justice (New York: Russell Sage Foundation, 1969).Google Scholar

111 Dan Walters, “Workers Compensation: A New Approach to an Old System,” Cal. Law., Feb. 1983, at 40, 41.Google Scholar

112 In 1990, California's statutory benefit levels for workers compensation—which tends to reflect the lobbying strength of organized labor—were comparatively low, ranking 34th among the 50 states. But in tern of average cost per worker (47 cents for every dollar of payroll), California ranked about third. “Twitching Millionaires,” Economist, 3 Oct. 1992, at 29. A major reason was a high litigation rate, reaching nearly 36% of claims. California Workers Compensation Institute (CWCI), “Research Notes” (San Francisco: CWCI, 1991). Direct litigation costs—fees for both sides' attorneys, forensic physicians—averaged over $7,000 per case in 1990; the average award for successful applicants was $11,879.Google Scholar

113 Economist, 3 Oct. 1992, at 29. See also CWCI, Workers' Compensation Litigation Costs, 1990 (San Francisco: CWCI, Sept. 1991) (“CWCI, Costs”). In one case cited by reform groups, the claimant was a Sacramento workers compensation judge who smoked and drank heavily, suffered a stroke, and was then awarded a $45,000 settlement under the compensation law after he claimed that his stroke was caused by job stress. Ralph Frammolino, “Claims for Stress Devour Billions, Reformers Charge,” L.A. Times, 15 March 1988, at 3.Google Scholar

114 Herbert Kritzer, The Politics of Redress: Controlling Access to the Court System in England at 13, 16 (presented at Law & Society Association annual meeting, 1993).Google Scholar

115 Michael McCann, Taking Reform Seriously: Perspectives on Public Interest Liberalism 114 (Ithaca, N.Y.: Cornell University Press, 1986).Google Scholar

116 Id.Google Scholar

117 Id. at 112–13; Martin Shapiro, Who Guards the Guardians? Judicial Control of Administration (Athens: University of Georgia Press, 1988).Google Scholar

118 R. Shep Melnick, “Pollution Deadlines and the Coalition for Failure,” in M. Greve & F. Smith, eds, Environmental Politics: Public Costs, Private Rewards (New York: Greenwood Press, 1992) (“Greve & Smith, Environmental Politics”).Google Scholar

119 Rubin, Edward, “Legislative Methodology: Some Lessons from the Truth-in-Lending Act,” 80 Geo. L. Rev. 233 (1991), which provides a detailed account of the formulation and drafting of the federal Truth-in-Lending Act. The act provided debtors a right of action against lenders who did not comply with the complex federal disclosure regulations, adding that prevailing plaintiffs would receive a $100 minimum award, regardless of actual losses, plus their attorneys' fees. That was enough to enable many defaulting debtors, simply by hiring a lawyer and raising a Truth-in-Lending defense, to repel collection suits. And the $100 remedy, “when combined with the procedural mechanism of class actions, raised the specter of enormous damages suits for minor violations of the statute” (id. at 237). According to Rubin's account, the private right of action enforcement mechanism arose not primarily from pressure by lawyer lobbyists but from Senator Douglas's hope of gaining political support for the bill by promising it would not require “spawning another federal bureaucracy” (id. at 246). But where did the idea of private enforcement, attorney fee shifting, and minimum damage awards come from.Google Scholar

120 Boalt Hall Transcript, Fall 1993, at 72, 85.CrossRefGoogle Scholar

121 Phillips is quoted as saying, “The law created unprecedented opportunities for private lawyers. What could be more exciting than being a quasi-public prosecutor of fraud, who, if successful, is paid handsomely for the job?” In 1992, Phillips's firm recovered $235 million for the US. Treasury. Id.Google Scholar

122 Andrew Lohof, The Cleanup of Inactive Hazardous Waste Sites in Selected Industrialized Countries (Washington, D.C.: American Petroleum Institute, 1991); R. Kopp, P. Portney, & D. DeWitt, “International Comparisons of Environmental Regulation” (Discussion Paper QE90-22-REV) (Washington, D.C.: Resources for the Future, 1990).Google Scholar

123 The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) imposes absolute, joint and several, and retroactive liability for clean-up costs on any enterprise whose wastes found their way into the disposal site—regardless of the disposer's share of the wastes, regardless of whether it acted perfectly lawfully under the legal rules and containment practices prevailing at the time of disposal, regardless of the absence of any demonstrated current harm to human health.Google Scholar

124 M. Landy & M. Hague, “The Coalition for Waste: Private Interests and the Superfund,” in Greve & Smith, Environmental Politics (cited in note 118) (“Landy & Hague, ‘Coalition for Waste’”). Landy and Hague elaborate: “In an effort to clean up a site near Utica, New York, the EPA sued two companies—a cosmetics producer and a manufacturer of metal components—who, in turn, sued over 600, mostly small, businesses and 41 towns and school districts.” Not surprisingly, litigation and related transaction costs, governmental and private, add up to as much as 44% of the funds actually expended on clean-up. Peter Menell, “The Limitations of Legal Institutions for Addressing Environmental Risks,” 5 J. Econ. Perspectives 93 (1991). And in consequence, the authors of a detailed study of Superfund implementation observe, “By mid-1990,…after 10 years of program operation, only sixty-three of the more than twelve hundred National Priorities List sites had been cleaned up.” T. Church & R. Nakamura, Cleaning up the Mess: Implementation Strategies in Superfund (Washington, D.C.: Brookings Institution, 1993) (“Church and Nakamura, Cleaning up the Mess”).Google Scholar

125 Landy & Hague, “Coalition for Waste”.Google Scholar

126 Osiel, Mark J., Lawyers as Monopolists and Entrepreneurs, Review of Lawyers in Society, edited by Abel, Richard L. & Lewis, Philip P. C. S. (1988), 103 Harv. L. Rev. 2009, 2019 (1990).Google Scholar

127 Schneyer, Ted, “Professionalism and Bar Politics: The Making of the Model Rules of Professional Conduct,” 14 Law & Soc. Inquiry 677 (1989).CrossRefGoogle Scholar

128 Osiel, , 103 Harv. L. Rev. at 2018.Google Scholar

129 Langbein, , 52 U. Chi. L. Rev. 823, 833–34 (cited in note 6): “If we had deliberately set out to find a means of impairing the reliability of witness testimony, we could not have done much better than the existing system of having partisans prepare witnesses in advance of trial and examine and cross-examine them at trial”.Google Scholar

130 Osiel, , 103 Harv. L. Rev. at 2060, argues: “The stringency of their ethical guidelines on matters of client loyalty impelled American lawyers toward the imaginative discovery of doctrinal ambiguity where such ambiguity would otherwise have remained merely latent. In particular, the view of legal expertise as the skillful exploitation of doctrinal uncertainty would not have become 50 central to the self-understanding of American attorneys had their ethical guidelines encouraged them to view themselves, like many lawyers elsewhere in the West, primarily as ‘officers’ of society”.Google Scholar

131 Peter Ken, “The High Cost of Job Injury Claims,” N.Y. Times, 22 Feb. 1993, at C1, C7.Google Scholar

132 Id.Google Scholar

133 In 1986 two lawyers formed the National Tire Workers Litigation Project, equipped vans with x-ray machines, traveled to tire plants offering examinations of workers who had been exposed to asbestos, and filed suit on behalf of 6,000 workers. A federal trial judge accused the attorneys of “indifference as to whether any of the 6000 claim meet professional standards or not.” M. Geyelin & M. McCarthy, “Judges Chides Lawyers Facing Suit for Thousands of Asbestos Claims,” Wall St. J., 7 June 1990, at B8. For other examples, see M. Geyelin, “Texas Lawyers Seek Bill to Curb Their Soliciting,” Wall St. J., 25 May 1993, at B1. Conversely, it should be noted, insurance companies long have dispatched representatives to disaster Scenes in order to make quick payments to victims, asking for releases in return.Google Scholar

134 Kritzer, Herbert, “Propensity to Sue in England and the United States of America: Blaming and Claiming in Tort Cases,” 18 J. Law & Soc'y 400 (1991).Google Scholar

135 Deborah Hensler et al., Accidents and Injuries in the U.S.: Costs, Compensation, and Claiming Behavior (Santa Monica, Cal.: RAND Institute for Civil Justice, 1991); R. Miller & A. Sarat, “Grievances, Claim and Disputes: Assessing the Adversary Culture,” 15 Law & Soc'y Rev. 525 (1980–81).CrossRefGoogle Scholar

136 I have interviewed a number of claims officials who work for West Coast shipping lines and handle claims under the federal Longshore and Harbor Workers Compensation Act. I am invariably told that claims rates are far higher in the Ports of Los Angeles and Long Beach than for essentially identical stevedoring operations in the Ports of Oakland and San Francisco. The employers contest a far larger proportion of claims in the Los Angeles ports as unfounded or inflated. Asked why, they refer to the entrepreneurial behavior of claimants attorneys whose offices abut the port area on San Pedro Bay and who station representatives in union halls. One suspects aggressive attorney behavior is involved when research reveals that in Southern California, workers compensation insurers' or employer's first notice of injury claims came from the claimant's attorney in almost 55% of 1991 claims, up from 44% in 1985, while attorneys were initially engaged in only 29% of 1991 Northern California claims, a decline from 34% in 1985. Similarly, workers compensation litigation rates (an indicator of how often insurers find claims unfounded or exaggerated) rose from 10% of Southern California claim (1985) to 17.5% (1991), while litigation occurred in only 8.2% of Northern California 1991 claims. CWCI, Costs (cited in note 113) New York City's municipal liability payments for slip-and-fall accidents in 1991, calculated on a per capita basis, were double those in Detroit and more than 50% higher than Chicago's. The city's aggregate liability claim payments grew by almost 50% in the preceding three years, until they exceeded what the city pays to operate all its parks and libraries. The city's attorneys, according to a New York Times reporter, “attribute their rising expenses to increasingly litigious citizens, zealous (and sometimes fraudulent) trial lawyers, and juries often ruled more by emotions than facts.” They claim that “lawyers whose clients are injured in car accidents or sidewalk stumbles scrutinize the pavement for defects that can drag the city into the case. Even if the jury finds that the city is just 5 percent at fault, in the absence of other wealthy defendants, the city can be held responsible for … damages.” Allen Myerson, “Soaring Liability Payments Burden New York's Budget,” N.Y. Times, 29 June 1992, at A15.Google Scholar

137 David Stipp, “Dogma in Doubt: Some Question Extent of Lead's Risk to Kids, Need to Remove Paint,” Wall St. J., 16 Sept. 1993, at A1, A12. The Boston attorney told a reporter that he had filed hundreds of lead poisoning suits, including one in which he won a $9,000 settlement for the mother of a child who had a tested lead level of zero. “As asbestos litigation dries up,” he was quoted as saying, “law firms geared up for toxic tort litigation are turning to lead”.Google Scholar

138 Milo Geyelin, “Debate Intensifies over State Regulations that Restrict TV Advertising by Lawyers,” Wall St. J., 31 Aug. 1992, at B1.Google Scholar

139 Id. Another Florida TV ad featured a man who said that after his third arrest for drunk driving, “They wanted to put me in jail for a year and take away my drivers license for 10 years. That's when I called the lawyers at the Ticket Clinic. They got my case thrown out of court. No jail. No suspension. Nothing.” Id.Google Scholar

140 Jonathan M. Moses, “Accord Enriching Only Lawyers Assailed,” Wall St. J., 23 Jan. 1992, at B8.Google Scholar

141 Id.Google Scholar

142 “Crass Action,” Wall St. J., 1 April 1993, at A14.Google Scholar

143 Alexander, Janet Cooper, “Do the Merits Really Matter? A Study of Settlements in Securities Class Actions,” 43 Stan. L. Rev. 497, 513 (1991). The suits were filed whenever a stock sustained a market loss of $20 million or more, skipping some smaller issues in which some larger percentage losses occurred, since that amount seems to have been necessary to make the contingency fee litigation profitable. The plaintiffs' lawyers clearly filed suit merely on the basis of the stock decline, without any prior evidence of fraud or other securities laws violations, and then sought detailed pretrial discovery that probed for evidence that management had in some way exaggerated the company's product quality or sales prospects. See also Fisher, L., “Williams S. Lerach: The Pit Bull of Silicon Valley,”N.Y. Times, 19 Sept. 1993, sec. F, at 4; A. Serwer, What To Do about Legal Blackmail, Fortune, 15 Nov. 1993, at 136–40.Google Scholar

144 Alexander, , 43 Stan. L. Rev. at 499.Google Scholar

145 Id. at 575.Google Scholar

146 Id. at 501.Google Scholar

147 Romano, Roberta, “The Shareholder Suit: Litigation without Foundation 7 J.L., Econ. & Organization 55 (1991). Romano studied all shareholder suits against a random sample of publicly traded corporations from the late 1960s through 1987.Google Scholar

148 Id. at 61.Google Scholar

149 “A likely explanation for cosmetic structural settlements is the need to paper a record to justify an award of attorneys' fees to courts.” Id. at 63.Google Scholar

150 Id. at 65. Of the 83 resolved cases in Romano's sample, only half involved a monetary recovery for stockholders, while plaintiffs' attorneys were paid in 90% (75 cases), and in 7 cases the only relief was attorneys' fees. Of the 32 adjudicated cases, plaintiffs won only one (or perhaps two). Id. at 61.Google Scholar

151 Peterson, M. & Selvin, M., “Mass Justice: The Limited and Unlimited Power of Courts,” 54 Law & Contemp. Probs. 227, 227, 231, 241 (1991); Schuck, Peter H., Agent Orange on Trial: Mass Toxic Disasters in the Courts (Cambridge, Mass.: Belknap Press, 1986); Peter Huber, “Environmental Hazards and Liability Law,”in Litan, R. & Winston, C., eds., Liability: Perspectives and Policy (Washington, D.C.: Brookings Institution, 1988).CrossRefGoogle Scholar

152 Garth, Bryant, “Power and Legal Artifice: The Federal Class Action,” 26 Law & Soc'y Rev. 237, 257 (1992): “Turning to the benefits provided to the class, the facts do not add up to a strong picture of litigation than makes lasting improvements in the lives of class members”.CrossRefGoogle Scholar

153 No Soul to Damn, No Body to Kick: An Unscandalized Inquiry into the Problem of Corporate Punishment,” 79 Mich. L. Rev. 386, 435 (1981), observes: The private plaintiff is typically a “free rider” who files his civil action in the wake of an indictment brought by the Antitrust Division. It is not uncommon today for the private enforcer to attend the criminal trial and to take copious notes so that evidence uncovered by the government will yield a treble damage recovery for him. … In such cases, the actual litigation undertaken by the private enforcers is chiefly internecine: they skirmish among themselves over such procedural issues as the appointment of lead counsel, the size of the settlement, and the allocation of attorney's fees.CrossRefGoogle Scholar

154 A 1984 study showed that 349 notices of intent to sue were filed under federal pollution control laws in the 1978-April 1984 period, 214 of which were filed under the Clean Water Act after 1982, most by environmental groups. An article published in 1989 found that more than 800 additional notices of intent to sue were filed after April 1984, two-thirds by environmental organizations. Greve, 97 Pub. Interest at 18 (cited in note 104).Google Scholar

155 James B. Stewart, The Partners: Inside America's Most Powerful Law Finns 146 (New York: Simon & Schuster, 1983).Google Scholar

156 Id. at 282.Google Scholar

157 Gilson, , 17 Law & Soc. Inquiry at 639 (cited in note 50). See also Cheit, 11 Stud. L., Pol. & Soc'y (cited in note 34).Google Scholar

158 Canan, P. & Pring, G., “Studying Strategic Lawsuits against Public Participation,” 22 Law & Soc'y Rev. 385 (1988).CrossRefGoogle Scholar

159 See Serge Taylor, Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform 240–48 (Palo Alto, Cal.: Stanford University Press, 1984).Google Scholar

160 M. O'Hare, L. Bacow, & D. Sanderson, Facility Siting and Public Opposition (New York: Van Nostrand, 1983); Charles Lester, “The Search for Dialogue in the Administrative State: The Politics, Policy, and Law of Offshore Oil Development” (Ph.D. diss., University of California, Berkeley, 1991).Google Scholar

161 It should be emphasized, of course, that criminal defense lawyers' aggressive use of the mechanisms of adversarial legalism is wholly justified whenever there is any reasonable doubt of guilt. It is especially justified in capital cases and others in which prosecutors may be under political pressure to obtain a conviction. See Peter Applebome, “On the Fast Track from the Courtroom to Death Row,” N.Y. Times, 7 March 1994, sec. 4, at 2.Google Scholar

162 W. Seabom Jones, “Mothers, Don't Let Your Children Grow up to Be Lawyers,” in National Association for Law Placement, Report to Law School Deans and Hiring Attorneys on Legal Employment (Washington, D.C.: The Association, 1993).Google Scholar

163 Resnick, Judith, “Failing Faith: Adjudicatory Procedure in Decline,” 53 U. Chi. L. Rev. 494 (1986). If that is so, then the 35% figure understates the number of legally unfounded cases or defenses.CrossRefGoogle Scholar

164 Trubek, David et al., “The Costs of Ordinary Litigation,” 31 UCLA L. Rev. 72 (1983). Similarly, a study of medical malpractice claims filed in Florida concerning birth injuries found that 30% were closed with no payment. Sloan, F. & Van Wert, S., “Cost and Compensation of Injuries in Medical Malpractice,” 54 Law & Contemp. Probs. 131, 155 (1991).Google Scholar

165 Marshall, L., Kritzer, H., & Zemans, F., “Public Policy: The Use and Impact of Rule 11,” 86 Nw. U.L. Rev. 943 (1992).Google Scholar

166 Priest, G. & Klein, B., “The Selection of Disputes for Litigation,” 13 J. Legal Stud. 1 (1984).CrossRefGoogle Scholar

167 Eisenberg, Theodore, “Testing the Selection Effect: A New Theoretical Framework with Empirical Tests,” 19 J. Legal Stud. 337 (1990).CrossRefGoogle Scholar

168 Metzloff, Thomas, “Resolving Malpractice Disputes: Imaging the Jury's Shadow,” 54 Law & Contemp. Probs. 43, 45, 77–79 (1991) (in malpractice cases with contested liability, plaintiffs' win rate only slightly over 10%); Bovberg, R., Sloan, F., & Shieh, C. R., “Juries and Justice: Are Malpractice and Other Personal Injuries Created Equal?” 54 Law & Contemp. Probs. 5, 36–38 (1991) (plaintiffs win malpractice verdicts only half as often as in auto accident cases).CrossRefGoogle ScholarPubMed

169 Nelson, William, “Contract Litigation and the Elite Bar in New York City, 1960–1980,” 39 Emory L. Rev. 441, 446 (1990).Google Scholar

170 Nelson provides little supportive evidence concerning this alleged shift in the legal ethics of corporate law firms. But neither is it implausible, especially in an era in which large law firms had to compete ever more fiercely to maintain their litigation departments and the growth in billings on which they had become dependent. See M. Galanter & T. Palay, Tournament of Lawyers: The Transformation of the Big Law Firms (Chicago: University of Chicago Press, 1991).Google Scholar

171 Winter, Ralph K., “Foreword: In Defense of Discovery Reform,” 58 Brooklyn L. Rev. 263, 264 (1992).Google Scholar

172 In a careful study of litigation in both state and federal courts in 1978, researchers associated with the Wisconsin Civil Litigation Project found that most civil cases—only some 12% of which involved claims of $50,000 or more—settled relatively quickly and hence in over half the case files there was no record of any pretrial discovery. And “rarely did the records reveal more than five separate discovery events.”Trubek et al ., 31 UCLA L. Rev. 72 (1983) (cited in note 163).Google Scholar

173 Rabin, Robert L., “Some Reflections on the Process of Tort Reform,” 25 San Diego L. Rev. 13, 42 (1988).Google Scholar

174 Wayne Brazil, “Views from the Front Lines: Observations by Chicago Lawyers about the System of Civil Discovery,” 1980 A.B.F. Res. J. 219. For all the admitted waste in the discovery process, it is often ineffective. Large-case litigarors estimated that 50% of their cases are closed out with at least one party believing it knows something of significance that opposing parties do not know.CrossRefGoogle Scholar

175 Michael J. Kaufman, “The Role of Lawyers in Civil Litigation: Obstructors rather than Facilitators of Justice,” Ill. B.J., Dec. 1988, at 202, 203.Google Scholar

176 Rule 9(b) of the Federal Rules is designed to avoid unnecessary contentiousness by requiring plaintiffs to state claims of fraud “with particularity.” But according to Kaufman (id.), “One would be hard-pressed to envision a lawsuit with common law fraud, securities fraud or RICO claims that did not get bogged down in a Rule 9(b) dispute” because the plaintiffs lawyer, unwilling to help the defendant prepare, “typically resists the nonadversarial spirit of Rule 9(b) by alleging fraud in a general notice-pleading manner”.Google Scholar

177 Bernard Penner, “The Prosecutor and Ex Parte Communications,” Nat'l Envtl. Enforcement J., May 1992, at 3; Kenneth Mann, Defending White Collar Crime (New Haven, Conn.: Yale University Press, 1985).Google Scholar

178 Nardulli, Peter, “The Societal Costs of the Exclusionary Rule Revisited,” 1987 U. Ill. L. Rev. 223, found that only 17% of motions to suppress physical evidence were granted, and only 5% of motions to suppress confessions. In Chicago, while motions to suppress were more often granted at pretrial hearing, those made before the trial court were granted only 12% of the time.Google Scholar

179 Stephen Brill, “U.S. v. Int'l Brotherhood of Teamsters and SEC v Drexel Lambert: When the Government Goes Judge Shopping,” in S. Brill, Trial by Jury (New York: American Lawyer Books/Touchstone, 1989).Google Scholar

180 John Privatera, “Using CERCLA's Natural Resource Damage Provision to Focus and Organize a State Environmental Penalty Case: A Personalized Case Study,” Nat'l End Enforcement J., March 1992, at 3.Google Scholar

181 Curtis, Dennis, “Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision and the Pursuit of the Dollar,” 66 S. Cal. L. Rev. 985, 1003 (1993).Google Scholar

182 Church, & Nakamura, , Cleaning Up the Mess 27 (cited in note 124).Google Scholar

183 Id.Google Scholar

184 Under the tort law system, governmental officials said, few suits on behalf of infants are successful and those who win in court often have to wait a decade or more to see any money. Under the proposed system, they argued, “instead of a small number of individuals getting very large awards,” a much larger number of families would receive moderate compensation. Determinations about eligibility and benefits would be made by a panel consisting of two doctors, a lawyer, a parent of an injured infant, and an expert in developmental disabilities. Sarah Lyall, “A Bill Would Pay for Birth Injuries,” N.Y. Times, 21 April 1993, at B12.Google Scholar

185 Id.Google Scholar

186 Blumstein, J., Bovberg, R., & Sloan, F., “Beyond Ton Reform: Developing Better Tools for Assessing Damages for Personal Injury,” 8 Yale J. Reg. 171 (1990).Google Scholar

187 Langbein, , 52 U. Chi. L. Rev. (cited in note 6).Google Scholar

188 Bovberg, R., Sloan, F., & Blumstein, J., “Valuing Life and Limb in Tort: Scheduling Pain and Suffering,” 83 Nw. U.L. Rev. 980 (1989); Hammett, C. & Relles, , “Tort Standards and Jury Decisions,” 14 J. Legal Stud. 751 (1985); Jeffrey O'Connell, The Lawsuit Lottery: Only the Lawyers Win (New York: Free Press, 1979); Huber, Peter, “Junk Science and the Jury,” 1990 U. Chi. Legal F. 273.Google Scholar

189 Alschuler, A., “The Vanishing Civil Jury,” 1990 U. Chi. Legal F. 1, 2–3 (1990). Alschuler explains: “the civil trial is on its deathbed, or close to it, because our trial system has become unworkable. The American trial has been bludgeoned by lengthy delays, high attorneys' fees, discovery wars, satellite hearings, judicial settlement conferences, and the world's most extensive collection of cumbersome procedures. Few litigants can afford the cost of either the pretrial journey or the trial itself.”Id. at 5–6.Google Scholar

190 In Germany, mandatory worker compensation (industrial accident) insurance coverage was extended to cover students and travel to and from work and school, and thus covers at least one-third, possibly half, of all traffic accident injuries. F. Nutter & K. Bateman, The U.S. Tort System in the Era of the Global Economy 46 (Schaumburg, Ill.: Alliance of American Insurers, 1989) (“Nutter & Bateman, U.S. Tort System”). Switzerland extended workers compensation insurance coverage to injuries at home and at play. T. Duffy & R. Landis, “Workers Compensation in Switzerland,” 3 NCCI Digest, March 1988, at 31. In 1961, Germany enacted an “enterprise liability” law for compensating persons harmed by vaccines and added a similar law in 1978 for injuries caused by all pharmaceuticals. Nutter & Bateman, supra at 44. Sweden, in addition to making social insurance and medical care the primary recourse for tort victims, established special no-fault insurance regimes for motor vehicle injuries, injuries to patients caused by medical procedures, and pharmaceuticals. Carl Oldherz, “Security Insurance, Patient Insurance, Pharmaceutical Insurance in Sweden,” 34 Am. J. Comp. L. 637 (1986); Jan Hellner, “Compensation for Personal Injury: The Swedish Alternative,” 34 Am. J. Comp. L. 613 (1986).Google Scholar

191 See Stephen Sugarman, “The California Vehicle Injury Plan (VIP): Better Compensation, Fairer Funding, and Greater Safety” (Working Paper, Earl Warren Legal Institute, University of California, Berkeley, 1993).Google Scholar

192 Research on comparative liability insurance costs is sparse and remains anecdotal, but it all points in the same direction. Dow Chemical, whose sales abroad equal those in the United States, said its 1986 legal and insurance expenses in America were five times its overseas costs for comparable coverage, Nutter & Bateman, U.S. Tort System 20. Summarizing a 1987 business round table discussion at the Fletcher School at Tufts, Nutter & Bateman say: “It has been estimated that German producers pay insurance premiums for goods exported to the United States that are four to six times higher than the premiums on exports to other countries.” In Canada, physicians in 1986 paid medical malpractice protection fees ranging from $288 to $3,500 a year depending on their specialties; in the same year, St. Paul Insurance Co., a leading malpractice underwriter, said its typical premiums ranged from $1,365 annually for an Arkansas general practitioner to $106,000 for a Miami neurosurgeon. Peggy Berkowitz, “In Canada, Different Legal and Popular Views Prevail,” Wall St. J., 4 April 1986, at 21.Google Scholar

193 Saks, , 140 Pa. L. Rev. (cited in note 8).Google Scholar

194 Nutter & Bateman, U.S. Tort System 16 (cited in note 189).Google Scholar

195 Danzon, Patricia, “The Frequency and Severity of Medical Malpractice Claims: New Evidence,” 49 Law & Contemp. Probs. 57 (1986).CrossRefGoogle ScholarPubMed

196 For example, in 1984 the California State Bar supported a bill that would authorize courts to force parties who reject a settlement offer and then do worse at trial to pay the other side's attorneys' fees. The California Trial Lawyers Association opposed the bill, and for two years in a row it died in the ATLA-friendly state senate judiciary committee. Vic Pollard, “Sacramento Scene,” Cal. Law., Dec. 1984, at 55.Google Scholar

In. New York, a criminal lawyer recently wrote that widire “has been distorted by trial lawyers” to the extent that “the average time taken to select a jury is more than twice the time it takes in jurisdictions in which the judge questions potential jurors for bias. … [S]electing a jury for a ma1 of even the lowest grade misdemeanor often takes two days”— further increasing the pressure on prosecutors to avoid trial by offering concessions in return for a plea. Eliot Spitzer, “Faster Justice in New York,” N.Y. Times, 1 March 1993, at A15. The state legislature has failed to act on a proposal calling for judge-controlled voir dire, Spitzer asserts, because of opposition by trial lawyers.Google Scholar

197 Nutter & Bateman, The U.S. Tort System 16–18.Google Scholar

198 Steve Nelson, “Trial Lawyers Blaze Aggressive Trail,” Legal Times, 14 March 1983, at 1.Google Scholar

199 L. Gordon Crovitz, “Lawyers Seek Senators as Advocates against Quayle Reforms,” Wall St. J., 18 Sept. 1991, at A15. In the 1992 elections, ATLA's political action committee was the nation's fourth largest in total contributions, ranking ahead of the National Education Association and falling just short of the National Association of Realtors, the American Medical Association, and the Teamsters. “Who Gave the Most,” N.Y. Times, 11 June 1993, at A12.Google Scholar

200 The “American rule” provides that each party in civil cases, win or lose, is responsible for paying her own counsel fees. Under this rule, as compared to a rule whereby the loser pays the winner's counsel fees—as in England and in most European countries—it is less risky for plaintiffs to file and pursue long-shot cases, and more tempting for defendants to discourage just claim by mounting costly, time-consuming legal defenses. There are reasonable arguments to be made on both sides of the counsel fee issue. The relevant point here is that organized American lawyers' groups helped perpetuate the rule that tends to encourage, not reduce, adversarial legalism.Google Scholar

201 A. Sanbom, “Derailing the Rules,” Nat'l L.J., 24 May 1993; R. Schmitt, “Lawyers United against Plan to Speed Suits,” Wall St. J., 8 June 1993, at B7.Google Scholar

202 R. Schmitt, “Plan to Cut Civil Litigation Costs Blocked,” Wall St. J., 15 Sept. 1993.Google Scholar

203 Rabin, , 25 San Diego L. Rev. at 24, 34 (cited in note 172).Google Scholar

204 U.S. Department of Transportation, Compensating Auto Accident Victims: A Follow-Up Report on No-Fault Auto Insurance Experiences (Washington, D.C.: U.S. Department of Transportation, 1985); David Foppert, “Does No-Fault Stack up?” in Best's Review: Property-Casualty Insurance Edition (Oldwick, N.J.: Best Co., 1992).Google Scholar

205 The Hart-Magnusen Bill was supported by the Consumer Federation of America, the Teamsters, the United Auto Workers, the AFL-CIO, and the American Association of Retired Persons. One prominent consumer advocate who did not support the bill was Ralph Nader, who is widely assumed to receive a good deal of financial support from ATLA. P. Heymann & L. Liebman, “No Fault, No Fee: The Legal Profession and Federal No-Fault Insurance Legislation” in Heymann & Liebman, eds., The Sod Responsibilities of Lawyers (Westbury, N.Y.: Foundation Press, 1988).Google Scholar

206 Id. at 325–30.Google Scholar

207 Henderson, J. & Twerski, A., “Stargazing: The Future of American Products Liability Law,” 66 N.Y U.L. Rev. 1332, 1336 (1991).Google Scholar

208 Peter Schuck, “The Worst Should Go First: Deferral Registries in Asbestos Litigation,” 15 Harv. J.L. & Pub. Pol'y 541, 553–68 (1992); Lester Brickman, “The Asbestos Litigation Crisis: Is There a Need for an Administrative Alternative?” 13 Cardozo L. Rev. 1819 (1992); James S. Kakalik et al., Costs of Asbestos Litigation (Santa Monica, CA: RAND Institute for Civil Justice, 1983).Google Scholar

209 One study of permanent disability claims indicated that in Maryland, New Jersey, and some categories of cases in Wisconsin, “dueling adversary experts” were employed in 63%, 79%, and 63% of cases, respectively, and “friction costs” added up to 38%, 46%, and 42% of the total disability payments awarded (WCRI, Reducing Litigation: Evidence from Wisconsin (Cambridge, Mass.: Workers Comp. Research Institute, 1988).Google Scholar

210 Another demonstrated method for drastically reducing adversarial legalism is the “final-offer adjudication” rule adopted for some categories of cases in Wisconsin. The adjudicator is pledged not to “split the difference” but to adopt the percentage of disability found by either the employee's or the employer's physician; in consequence, extremely divergent assessments are uncommon. Together with a more aggressive staff role in making initial determinations, this Wisconsin plan has resulted in enormous reductions in attorney use and “friction costs.” Id. One has to wonder what role claimants' attorneys have played in preventing diffusion of this reform.Google Scholar

211 See J. Birnbaum, “Political Contributions of Narrow-Focus Groups Seen by Some as Growing Campaign Funds Issue,” Wall St. J., 22 Dec. 1989, at A8.Google Scholar

212 See Richard Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic 111–22, 157–83 (New York: W. W. Norton, 1971); Arnold Paul, The Conservative Crisis and the Rule of Law: Attitudes of Bar und Bench, 1887–1985 (Ithaca, N.Y.: Cornell University Press, 1960); Benjamin Twiss, Lawyers and the Constitution: How Laissez-Fare Came to the Supreme Court (Princeton, N.J.: Princeton University Press, 1942); Shamir, 27 Law & Soc'y Rev.(cited in note 22).Google Scholar

213 See Bruce Ackerman, Reconstructing American Law (Cambridge, Mass.: Harvard University Press, 1984).Google Scholar

214 See pp. MS. 9–11 000–00 supra.Google Scholar