Saturday, May 25, 2013
Pro-Business and Anti-Efficiency: How Conservative Procedural “Innovations” Have Made Litigation Slower, More Expensive, and Less Efficient
Posted by D. Daniel Sokol
J. Douglas Richards & Michael B. Eisenkraft (Cohen Milstein) discuss Pro-Business and Anti-Efficiency: How Conservative Procedural “Innovations” Have Made Litigation Slower, More Expensive, and Less Efficient.
ABSTRACT: As detailed in a recent popular book by Jacob Hacker & Paul Pierson, recent decades have brought to America a well-orchestrated political campaign to favor the economic interests of large corporations over those victimized by torts and other wrongful corporate acts. Hallmarks of that campaign have included propagandistic messaging from the United States Chamber of Commerce and others about such supposedly widespread phenomena as "nuisance suits," "frivolous litigation," "class action abuse," "hydraulic pressure to settle," and the like. The Chamber of Commerce has even gone so far as to release multiple movie trailers, for exhibition in connection with feature films, which consisted largely of propaganda about "costly and frivolous" lawsuits.
Respected commentators who have scrutinized these claims about the litigation process have generally found them to possess little or no factual foundation. For example, Professor Arthur Miller observed "the picture generally portrayed is incomplete and is distorted by a lack of definition and empirical data regarding the alleged negative aspects of federal litigation. This generates rhetoric that often reflects ideology or economic self-interest, rather than reality." Other academic observers have made similar observations.