Document Type

Article

Publication Date

Spring 1989

Keywords

Constitutional tort litigation, Litigation explosion, Marc Galanter, Empirical legal studies, Section 1983 litigation

Disciplines

Civil Rights and Discrimination | Constitutional Law | Litigation | Torts

Abstract

Two hundred years is a long time. It is too long after formation of a court system to ask such basic questions as (1) what cases occupy the system, and (2) whether even informed professionals have a reasonable picture of what goes on within the system. Nonetheless, continuing debate about the volume and makeup of litigation in general and of federal court litigation in particular requires legal scholars to address these questions. Professor Marc Galanter's work on the litigation explosion questions central assumptions about the nature and growth of the federal docket. Our prior work undermines widely held views about constitutional tort litigation, the effect of the civil rights fee-shifting statute, and prisoner constitutional tort litigation. Yet observers continue to note the many constitutional tort actions, describing them as "an ever more powerful tool" for challenging official action and noting an "explosion" in new uses of section 1983. The section is "swamping the federal courts" and expediting the financial decay facing many local governments. And respected judges and commentators fervently argue that the caseload is smothering the courts. Judge Harry Edwards and some of his judicial colleagues have "the feeling that our friends in the law schools [do] not really understand the problems facing the judiciary ....”

Plainly, interested observers of the system have radically different views of litigation reality. This article explores why this might be so. For example, why is it that we cannot identify a civil rights explosion when judges and others perceive one? How can a Supreme Court Justice announce a geometric increase in civil rights litigation after enactment of a fee-shifting statute at a time when there was little support for even arithmetic growth? Why is it that some observers suspect that constitutional tort litigation is highly successful when, by most tangible measures, it is one of the less successful classes of federal litigation?

Publication Citation

Published in: University of Chicago Law Review, vol 56, no. 2 (Spring 1989).

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