An Untimely Shaming

A case in point is the perennially popular assertion that the United States is experiencing an escalating epidemic of litigation and
has become “the world’s most litigious nation.” Scholars have debunked this claim so often that it is startling how much bunk survives. Current litigation rates in the United States are not exceptionally high, in comparison either with prior eras or with many other Western industrial nations not known for contentiousness. Americans were more likely to sue a century ago than they are now. United States court filings now are in the same range, when adjusted for population, as those in Canada, Australia, New Zealand, England, and Denmark. According to Professor Marc Galanter’s recent study, “The Vanishing Trial,” the number of federal and state courtroom contests peaked in the mid-1980s and has dramatically declined ever since. It is true that Americans resort to litigation more often than other nations to solve social problems. But whether or when this is undesirable is far more complicated than critics generally assume. The relevant question should be, “Compared to what?”

In any event, litigation rates are no measure of abusive litigation. Uncontested divorces account for much of the recent growth in civil
caseloads. Yet the higher frequency of marital breakdowns appears less a reflection of increased litigiousness than of increased
expectations for marital satisfaction and decreased tolerance of domestic violence. Nor do such cases constitute a major drain on
judicial resources: one representative survey clocked the average uncontested divorce hearing at four minutes. Although business
leaders are the sharpest critics of litigiousness, disputes between businesses are the largest and fastest growing category of civil cases.
Tort claims, such as those involving personal injuries and defective products, trigger the most criticism but are in fact declining.
Improvements in product safety, increased use of alternative dispute resolution, and tort reforms that make lawsuits less profitable have all played a role in curbing litigation.

Complaints about frivolous litigation, and disputes about how to  define and control it, are by no means a recent phenomenon. For over 
three centuries, Americans have fulminated against the bar as “cursed hungry Caterpillars” and plagues of “locusts” tormenting the nation with epidemics of unwarranted litigation and “sapping the  vitality” from the free enterprise system. The basis for this diagnosis is largely anecdotal. It draws heavily on what commentators label  “news as vaudeville”: the aberrant, amusing “tort tales” like those noted above.  Such cases receive disproportionate attention, and for obvious  reasons. In an increasingly competitive media market, the line between news and entertainment increasingly blurs. Loony litigation  plays to popular prejudice and offers a diverting alternative to dreary statistical details about the potential plaintiffs priced out of the justice  process. As a result, the public gets anecdotal glimpses of atypical cases without a sense of their overall significance. A content analysis  of one widely publicized book, The Litigation Explosion, tallied up its “evidence”: short anecdotes, 1 case study, and 6 citations to  statistical surveys. Many of the statistical data were highly misleading.

The problem is compounded by political polemics and business sponsored media campaigns that take considerable poetic license.