TORT REFORM, PLAINTIFFS’ LAWYERS, AND ACCESS TO JUSTICE, by Stephen Daniels and Joanne Martin. Lawrence, Kansas: University of Kansas Press, 2015. 286 pp. Cloth. $37.50. ISBN: 978-0-7006-2073-9.
Reviewed by Jeb Barnes, Department of Political Science, University of Southern California. Email: barnesj@usc.edu.
Political scientists spend an enormous amount of time and energy writing about the U.S. Supreme Court and constitutional politics. This focus is understandable on one level given the prominence of Supreme Court rulings on issues like abortion, marriage equality, and voting rights. On another level, however, this focus seems a bit odd. The Supreme Court hears only about 80 cases per term and we know from years of research that its high-profile rulings are often only the beginning of complex political battles that do not always yield significant social change. By contrast, according to recent federal caseload statistics, over 64,000 tort cases were filed in U.S. District Courts from March 31, 2015 to 2016, well over half of all of the federal courts’ diversity jurisdiction cases. Of course, federal tort cases are only the tip of a much larger iceberg, as the vast majority of tort lawsuits are filed at the state level. If bank robbers rob banks because that is where the money is, why do public law scholars often overlook areas like tort law when that is where the cases are?
Given this background, it is a relief to pick up Stephen Daniels and Joanne Martin’s new book. These scholars have had distinguished careers delving into—and providing insights about—the civil justice system and various myths about litigation in the United States. From the perspective of political science, their account hits a trifecta of worthy-but-often-overlooked topics by addressing tort law, focusing on litigation at the state (as opposed to federal) level, and combining a discussion of doctrine with a sophisticated analysis of legal practice—both its business model and norms. From the perspective of law and society scholars, Daniels and Martin’s analysis covers more familiar ground but offers key insights into the mechanisms underlying what Marc Galanter (1983) famously called the “radiating effects” of law while contributing to long-standing arguments about the key role of lawyers in maintaining and promoting rights (Epp 1998). The result is a book that should be read by anyone who wants to understand the American legal system as well as scholars interested in the intersection among formal rules, the social construction of law, and daily legal practice.
Readers familiar with the tort literature will recognize some of the material in the book, which appeared in earlier articles. The book, however, demonstrates the power of placing these updated materials with new work into a single narrative, which follows a logical progression through eight chapters. Chapters 1 and 2 introduce the analysis, explaining why we should care about plaintiffs’ lawyers as gatekeepers of important rights and offering context on the tort reform movement in Texas. Chapters 3 through 5 provide a foundation for understanding the Texas bar. Chapter 3 summarizes its development and related professional organizations. Chapter 4 delves into the professional identity of plaintiffs’ lawyers in Texas. It reveals that, for many, personal injury law is more than just a paycheck—it is a calling—which offers a useful corrective to the often-skewed portrayal of ambulance chasers in the media. Chapter 5 examines the contemporary Texas plaintiffs’ bar in greater detail, setting forth patterns of specialization across a hierarchy of lawyers and tort reform’s differential effect on the levels of this hierarchy. Chapters 6 and 7 use surveys to take a closer look at the impact of two types of tort reform: reforms directed at the referral process and caps on noneconomic damages. Both chapters underscore how tort reform, in fact, has limited access to the courts, most poignantly for “hidden victims” like the elderly [*63] whose cases are less likely to involve large economic damages such as lost earnings. Moreover, Daniels and Martin contend, blocking lawsuits across-the-board is fully consistent with the goals of tort reformers, who seek to not only prevent frivolous cases but also discourage meritorious ones.
No brief review can do justice to their rich analysis, but perhaps one small example will illustrate the types of insights that await its readers. Early in the book, Daniels and Martin discuss the impact of the Texas Workers’ Compensation Act on the tort system. The Act took effect in 1991 and served to limit access to workers’ compensation system in several ways, including setting limits on lawyers’ billable hours for certain activities, subjecting fees to administrative approval and capping the total amount of lawyers’ fees to 25% of their client’s recovery. After the Act went into effect, filings dropped precipitously from 10,000 to near 1,000 by the mid-1990s (p. 39). One might expect that the decrease in workers’ compensation claims would prompt lawyers to file more tort cases to recoup their losses. It did not. The reason is that filing workers’ compensation claims provided lawyers a steady stream of income, which covered their overhead and allowed them to pursue more risky tort claims. Equally important, handling workers’ compensation claims helped lawyers build a base of clients who would refer them cases as well as drive lawyer-to-lawyer referrals that directed business to high-powered tort lawyers with the expertise (and resources) to handle more complex litigation.
In this short example, we can see many of the virtues of Daniels and Martin’s multifaceted analysis. First, because they embed tort into a broader web of injury compensation policies, they make critical connections between workers’ compensation and tort law. Second, they detail changes in formal rules that seem technical but, in fact, go the very heart of the functioning of the law: namely, how the rules channel resources into (or away from) networks of lawyers that drive access to the courts. Finally, moving beyond general assessments of likely incentives created by rule changes, they show how reforms cast a sometimes-surprising shadow over organizational and business dynamics that shape tort claiming, revealing specific mechanisms that connect legal reform to access to the courts. The book is replete with these types of insights.
So, what are the quibbles? Not many. This is a book about tort reform in one state, Texas. Daniels and Martin do a thorough job of explaining why Texas merits a closer look, but less time explaining whether the lessons learned in the Lone Star State equally apply elsewhere. A few more words about generalizability would have been welcome. In addition, their work seems to have important points of contact with other works in the field. For example, what are the implications of the book’s findings about the shrinking of access to the courts at the state level for Charles Epps’ argument (2009) about the importance of the “fertile fear of litigation” at the local level? How do we square this story of legal reform at the state level with Sean Farhang’s account (2010) of the growing reliance on the courts at the federal level in the American litigation state? More generally, how do we incorporate the insights of this book about the social construction and effects of tort reform with scholarship that stresses the importance of private remedies in the provision of social benefits in the United States (e.g., Hacker (2002); Howard (2008))? The suggestion is not that Daniels and Martin’s book is flawed in any way, but that further consideration of its implications beyond the tort system might have enriched the analysis (and perhaps served to broaden its likely audience).
In conclusion, Daniels and Martins’ book adds to the already impressive list of their contributions to our understanding of the tort system and ongoing battles over civil litigation in the United States. It serves as a forceful reminder of the need to dig into the complexities inherent to the mutually constitutive relationship between formal rules and legal practice. Its richness and analytic transparency make it ideal for graduate seminars while its clear prose makes it appropriate for advanced undergraduate seminars. It deserves a place alongside other recent works, like Sarah Staszak’s excellent book (2015) on judicial retrenchment and the politics of civil procedure, that teach us the [*64] details of civil litigation and its reform are not arcane matters for law professors. They are integral to the patchwork of public and private remedies that underlie the modern American welfare state.
REFERENCES
Epp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press.
--. 2009. Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State. Chicago: University of Chicago Press.
Farhang, Sean. 2010. The Litigation State: Public Regulation and Private Lawsuits in the United States. Princeton: Princeton University Press.
Galanter, Marc. 1983. “The Radiating Effects of Courts.” In Empirical Theories about Courts, eds. Keith Boyum and Lynn Mather. New York: Longmans, 117-42.
Hacker, Jacob S. 2002. The Divided Welfare State: The Battle over Public and Private Social Benefits in the United States. New York: Cambridge University Press.
Howard, Christopher. 2008. The Welfare State Nobody Knows: Debunking Myths about U.S. Social Policy. Princeton: Princeton University Press.
Staszak, Sarah. 2015. No Day in Court: Access to Justice and the Politics of Judicial Retrenchment. New York: Oxford University Press.
© Copyright 2017 by author, Jeb Barnes.
