Archival legal information, Historical legal data, Class actions, Tort awards, Trial rates, Empirical legal studies, Trends in punitive damages, America's lawsuit culture
Law and Politics | Law and Society | Legal Writing and Research
Archival information about the legal system should inform policymaking. Despite claims of soaring civil damages awards, modem historical data show no to little growth in tort awards and no real growth in punitive damages awards. The data also show a dramatic forty-year decline in trial rates from more than ten percent of case dispositions to less than two percent. The decline needs to be explained in part by using archival data. Contrary to perceptions underlying the Class Action Fairness Act of 2005, little systematic evidence exists that state and federal courts process class actions significantly different. These results contradict the publicity campaigns and empirical studies generated by parties with policy agendas. If society does not preserve accurate information about the legal system, and promote the information's analysis and dissemination, questionable analysis will be supplied to suit the policy agendas of special interest groups. Society would not consider making economic policy without systematic knowledge of past economic experience. Nor would society consider making health care policy without systematic knowledge of past pandemics, epidemics, successful health campaigns, or toxic incidents. Society should demand no less before making legal policy.
Sound policymaking requires information about how the legal system operates. Critical information about its past operation often is not available in published texts, opinions, or routinely maintained databases. This article illustrates what should be obvious-that archival sources can and should inform policymaking. This exercise may be necessary or appropriate because policymakers too often ignore available information and neglect the historical record. Neglecting the historical legal record not only deprives policymakers of useful information. Information vacuums, like natural vacuums, will be filled. Absent reliable information, special interest groups with little incentive to accurately describe the legal system's operation will fill the vacuum with self-serving information and analysis.
Part II of this article discusses long-term patterns in three areas of recent policy discussion: tort awards, trial rates, and class actions. Claims of ever-increasing awards persist, both for punitive and compensatory damages. Without access to long-term data about trial-level awards, it is impossible to know how awards have changed. Two data sets illustrate the importance of archival information in describing the long-term trends in awards. The data supply no evidence of a broad-based, real increase in tort awards. The long-term decline in trial rates needs to be assessed using historical data about the procedural stages of case disposition. Historical information is least available about class action activity. Recent analysis by researchers at the Federal Judicial Center shows that analysis of case records can illuminate modem class action discussions. Little evidence yet exists that state and federal courts process class certification significantly differently.
Part III explores the uphill struggle to allow historical legal data to tell their story. The results relating to damages awards and class actions contradict the public relations efforts and empirical studies funded by groups with policy agendas. These groups engage in disinformation campaigns that distract from empirical realities. Accurate historical information about legal cases supplies the raw data needed for valid empirical description. Disinterested analysis of the information must be promoted to assure that policymaking is not captured by the policy agendas of well-funded special interest groups.
Eisenberg, Theodore, "Use It or Pretenders Will Abuse It: The Importance of Archival Legal Information" (2006). Cornell Law Faculty Publications. Paper 360.
Published in: UMKC Law Review, vol. 75, no.1 (Fall 2006).