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Do Lawyers Cause Adversarial Legalism? A Preliminary Inquiry

Published online by Cambridge University Press:  27 December 2018

Robert A. Kagan
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Abstract

Cross-national case studies have indicated that compared to other economically advanced democracies, American methods of policy implementation and dispute resolution are more adversarial and legalistic, shaped by costly court action or the prospect of it. To what extent are lawyers responsible for creating American-style adversarial legalism? This article argues that while adversarial legalism stems primarily from enduring features of American political culture and governmental structure, the legal profession plays a significant independent role in promoting and perpetuating this mode of governance.

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Articles
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Law & Social Inquiry , Volume 19 , Issue 1 , Winter 1994 , pp. 1 - 62
Copyright
Copyright © American Bar Foundation, 1994 

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References

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79 Emphasis added. J. Willard Hurst, Law and the Conditions of Freedom in the Nineteenth Century United States (Madison: University of Wisconsin Press, 1956); Horwitz, Transformation of American Law (cited in note 30).Google Scholar

80 Atiyah, & Summers, , From and Substance 391 (cited in note 11): “[T]he primary aim is to teach the student a methodology—how to construct, analyze, compare, evaluate, and criticise arguments and decisions (including rules) and to ‘project’ lines of judicial decisions and legislation. In this way the instructor implicitly inculcates faith in the power of substantive reasoning, in policy arguments, rather than in the mere arbitrium of formal rules”.Google Scholar

81 Michael Saks systematically compared American law reviews published in 1960 with those published in 1980. He found that in 1960 “the ratio of articles criticizing [the legal status quo] to articles defending was 0.84—for every article defending there was less than one article criticizing. For 1985 articles, the ratio had risen to 2.59—more than two and a half articles criticizing doctrine for every article defending it.” Saks, “Law Journals: Their Shapes and Contents, 1960 and 1985” at 5–6 (presented at Association of American Law Schools annual meeting, 1989).Google Scholar

82 The indeterminacy of rules and precedents was stressed by American Legal Realist scholars in the late 1920s and 1930s. It took another generation or two, however, before their views came to dominate legal education, forming the basic ground on which scholars of different philosophical camps sought new theories on which to base law. Today, reviewing the last decade's debates among the leading schools of legal thought, one professor concluded, “Now all sides agree that ‘in some ultimate sense law … is unavoidably political.’” Michael Wells, “Behind the Parity Debate: The Decline of the Legal Process Tradition in the Law of the Federal Courts,” 71 Boston U. L. Rev. 609 (1991) (quoting Richard Posner, “The Decline of law as an Autonomous Discipline: 1962–1987,” 100 Harv. L. Rev. 761 (1987).Google Scholar

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91 Rubin, Edward, “Thinking Like a Lawyer, Acting Like a Lobbyist: Some Notes on the Process of Revising UCC Articles 3 and 4,” 26 Loy. L.A. L. Rev. 743 (1993). Rubin's account does indicate, however, that both ALI as an institution and individual law professors not infrequently lobby legislatures for the changes they prefer.Google Scholar

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105 For selected accounts of activist public interest lawyering that extended adversarial legalism into new areas of welfare, educational, regulatory, mental health, and penal policy, see W. Robert Curtis, “The Deinstitutionalization Story,” Pub. Interest, Fall 1986, at 34; Robert Mnookin, ed., In the Interests of Children: Advocacy, Law Reform and & Policy (New York: W. H. Freeman, 1985); Jeremy Rabkin, Judicial Compulsions: How Public Law Distorts Public Policy (New York: Basic Books, 1989); John J. Dilulio, Jr., ed., Courts, Corrections and the Constitution (New York: Oxford University Press, 1990).Google Scholar

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117 Id. at 112–13; Martin Shapiro, Who Guards the Guardians? Judicial Control of Administration (Athens: University of Georgia Press, 1988).Google Scholar

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119 Rubin, Edward, “Legislative Methodology: Some Lessons from the Truth-in-Lending Act,” 80 Geo. L. Rev. 233 (1991), which provides a detailed account of the formulation and drafting of the federal Truth-in-Lending Act. The act provided debtors a right of action against lenders who did not comply with the complex federal disclosure regulations, adding that prevailing plaintiffs would receive a $100 minimum award, regardless of actual losses, plus their attorneys' fees. That was enough to enable many defaulting debtors, simply by hiring a lawyer and raising a Truth-in-Lending defense, to repel collection suits. And the $100 remedy, “when combined with the procedural mechanism of class actions, raised the specter of enormous damages suits for minor violations of the statute” (id. at 237). According to Rubin's account, the private right of action enforcement mechanism arose not primarily from pressure by lawyer lobbyists but from Senator Douglas's hope of gaining political support for the bill by promising it would not require “spawning another federal bureaucracy” (id. at 246). But where did the idea of private enforcement, attorney fee shifting, and minimum damage awards come from.Google Scholar

120 Boalt Hall Transcript, Fall 1993, at 72, 85.CrossRefGoogle Scholar

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122 Andrew Lohof, The Cleanup of Inactive Hazardous Waste Sites in Selected Industrialized Countries (Washington, D.C.: American Petroleum Institute, 1991); R. Kopp, P. Portney, & D. DeWitt, “International Comparisons of Environmental Regulation” (Discussion Paper QE90-22-REV) (Washington, D.C.: Resources for the Future, 1990).Google Scholar

123 The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) imposes absolute, joint and several, and retroactive liability for clean-up costs on any enterprise whose wastes found their way into the disposal site—regardless of the disposer's share of the wastes, regardless of whether it acted perfectly lawfully under the legal rules and containment practices prevailing at the time of disposal, regardless of the absence of any demonstrated current harm to human health.Google Scholar

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129 Langbein, , 52 U. Chi. L. Rev. 823, 833–34 (cited in note 6): “If we had deliberately set out to find a means of impairing the reliability of witness testimony, we could not have done much better than the existing system of having partisans prepare witnesses in advance of trial and examine and cross-examine them at trial”.Google Scholar

130 Osiel, , 103 Harv. L. Rev. at 2060, argues: “The stringency of their ethical guidelines on matters of client loyalty impelled American lawyers toward the imaginative discovery of doctrinal ambiguity where such ambiguity would otherwise have remained merely latent. In particular, the view of legal expertise as the skillful exploitation of doctrinal uncertainty would not have become 50 central to the self-understanding of American attorneys had their ethical guidelines encouraged them to view themselves, like many lawyers elsewhere in the West, primarily as ‘officers’ of society”.Google Scholar

131 Peter Ken, “The High Cost of Job Injury Claims,” N.Y. Times, 22 Feb. 1993, at C1, C7.Google Scholar

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133 In 1986 two lawyers formed the National Tire Workers Litigation Project, equipped vans with x-ray machines, traveled to tire plants offering examinations of workers who had been exposed to asbestos, and filed suit on behalf of 6,000 workers. A federal trial judge accused the attorneys of “indifference as to whether any of the 6000 claim meet professional standards or not.” M. Geyelin & M. McCarthy, “Judges Chides Lawyers Facing Suit for Thousands of Asbestos Claims,” Wall St. J., 7 June 1990, at B8. For other examples, see M. Geyelin, “Texas Lawyers Seek Bill to Curb Their Soliciting,” Wall St. J., 25 May 1993, at B1. Conversely, it should be noted, insurance companies long have dispatched representatives to disaster Scenes in order to make quick payments to victims, asking for releases in return.Google Scholar

134 Kritzer, Herbert, “Propensity to Sue in England and the United States of America: Blaming and Claiming in Tort Cases,” 18 J. Law & Soc'y 400 (1991).Google Scholar

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136 I have interviewed a number of claims officials who work for West Coast shipping lines and handle claims under the federal Longshore and Harbor Workers Compensation Act. I am invariably told that claims rates are far higher in the Ports of Los Angeles and Long Beach than for essentially identical stevedoring operations in the Ports of Oakland and San Francisco. The employers contest a far larger proportion of claims in the Los Angeles ports as unfounded or inflated. Asked why, they refer to the entrepreneurial behavior of claimants attorneys whose offices abut the port area on San Pedro Bay and who station representatives in union halls. One suspects aggressive attorney behavior is involved when research reveals that in Southern California, workers compensation insurers' or employer's first notice of injury claims came from the claimant's attorney in almost 55% of 1991 claims, up from 44% in 1985, while attorneys were initially engaged in only 29% of 1991 Northern California claims, a decline from 34% in 1985. Similarly, workers compensation litigation rates (an indicator of how often insurers find claims unfounded or exaggerated) rose from 10% of Southern California claim (1985) to 17.5% (1991), while litigation occurred in only 8.2% of Northern California 1991 claims. CWCI, Costs (cited in note 113) New York City's municipal liability payments for slip-and-fall accidents in 1991, calculated on a per capita basis, were double those in Detroit and more than 50% higher than Chicago's. The city's aggregate liability claim payments grew by almost 50% in the preceding three years, until they exceeded what the city pays to operate all its parks and libraries. The city's attorneys, according to a New York Times reporter, “attribute their rising expenses to increasingly litigious citizens, zealous (and sometimes fraudulent) trial lawyers, and juries often ruled more by emotions than facts.” They claim that “lawyers whose clients are injured in car accidents or sidewalk stumbles scrutinize the pavement for defects that can drag the city into the case. Even if the jury finds that the city is just 5 percent at fault, in the absence of other wealthy defendants, the city can be held responsible for … damages.” Allen Myerson, “Soaring Liability Payments Burden New York's Budget,” N.Y. Times, 29 June 1992, at A15.Google Scholar

137 David Stipp, “Dogma in Doubt: Some Question Extent of Lead's Risk to Kids, Need to Remove Paint,” Wall St. J., 16 Sept. 1993, at A1, A12. The Boston attorney told a reporter that he had filed hundreds of lead poisoning suits, including one in which he won a $9,000 settlement for the mother of a child who had a tested lead level of zero. “As asbestos litigation dries up,” he was quoted as saying, “law firms geared up for toxic tort litigation are turning to lead”.Google Scholar

138 Milo Geyelin, “Debate Intensifies over State Regulations that Restrict TV Advertising by Lawyers,” Wall St. J., 31 Aug. 1992, at B1.Google Scholar

139 Id. Another Florida TV ad featured a man who said that after his third arrest for drunk driving, “They wanted to put me in jail for a year and take away my drivers license for 10 years. That's when I called the lawyers at the Ticket Clinic. They got my case thrown out of court. No jail. No suspension. Nothing.” Id.Google Scholar

140 Jonathan M. Moses, “Accord Enriching Only Lawyers Assailed,” Wall St. J., 23 Jan. 1992, at B8.Google Scholar

141 Id.Google Scholar

142 “Crass Action,” Wall St. J., 1 April 1993, at A14.Google Scholar

143 Alexander, Janet Cooper, “Do the Merits Really Matter? A Study of Settlements in Securities Class Actions,” 43 Stan. L. Rev. 497, 513 (1991). The suits were filed whenever a stock sustained a market loss of $20 million or more, skipping some smaller issues in which some larger percentage losses occurred, since that amount seems to have been necessary to make the contingency fee litigation profitable. The plaintiffs' lawyers clearly filed suit merely on the basis of the stock decline, without any prior evidence of fraud or other securities laws violations, and then sought detailed pretrial discovery that probed for evidence that management had in some way exaggerated the company's product quality or sales prospects. See also Fisher, L., “Williams S. Lerach: The Pit Bull of Silicon Valley,”N.Y. Times, 19 Sept. 1993, sec. F, at 4; A. Serwer, What To Do about Legal Blackmail, Fortune, 15 Nov. 1993, at 136–40.Google Scholar

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146 Id. at 501.Google Scholar

147 Romano, Roberta, “The Shareholder Suit: Litigation without Foundation 7 J.L., Econ. & Organization 55 (1991). Romano studied all shareholder suits against a random sample of publicly traded corporations from the late 1960s through 1987.Google Scholar

148 Id. at 61.Google Scholar

149 “A likely explanation for cosmetic structural settlements is the need to paper a record to justify an award of attorneys' fees to courts.” Id. at 63.Google Scholar

150 Id. at 65. Of the 83 resolved cases in Romano's sample, only half involved a monetary recovery for stockholders, while plaintiffs' attorneys were paid in 90% (75 cases), and in 7 cases the only relief was attorneys' fees. Of the 32 adjudicated cases, plaintiffs won only one (or perhaps two). Id. at 61.Google Scholar

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152 Garth, Bryant, “Power and Legal Artifice: The Federal Class Action,” 26 Law & Soc'y Rev. 237, 257 (1992): “Turning to the benefits provided to the class, the facts do not add up to a strong picture of litigation than makes lasting improvements in the lives of class members”.CrossRefGoogle Scholar

153 No Soul to Damn, No Body to Kick: An Unscandalized Inquiry into the Problem of Corporate Punishment,” 79 Mich. L. Rev. 386, 435 (1981), observes: The private plaintiff is typically a “free rider” who files his civil action in the wake of an indictment brought by the Antitrust Division. It is not uncommon today for the private enforcer to attend the criminal trial and to take copious notes so that evidence uncovered by the government will yield a treble damage recovery for him. … In such cases, the actual litigation undertaken by the private enforcers is chiefly internecine: they skirmish among themselves over such procedural issues as the appointment of lead counsel, the size of the settlement, and the allocation of attorney's fees.CrossRefGoogle Scholar

154 A 1984 study showed that 349 notices of intent to sue were filed under federal pollution control laws in the 1978-April 1984 period, 214 of which were filed under the Clean Water Act after 1982, most by environmental groups. An article published in 1989 found that more than 800 additional notices of intent to sue were filed after April 1984, two-thirds by environmental organizations. Greve, 97 Pub. Interest at 18 (cited in note 104).Google Scholar

155 James B. Stewart, The Partners: Inside America's Most Powerful Law Finns 146 (New York: Simon & Schuster, 1983).Google Scholar

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157 Gilson, , 17 Law & Soc. Inquiry at 639 (cited in note 50). See also Cheit, 11 Stud. L., Pol. & Soc'y (cited in note 34).Google Scholar

158 Canan, P. & Pring, G., “Studying Strategic Lawsuits against Public Participation,” 22 Law & Soc'y Rev. 385 (1988).CrossRefGoogle Scholar

159 See Serge Taylor, Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform 240–48 (Palo Alto, Cal.: Stanford University Press, 1984).Google Scholar

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161 It should be emphasized, of course, that criminal defense lawyers' aggressive use of the mechanisms of adversarial legalism is wholly justified whenever there is any reasonable doubt of guilt. It is especially justified in capital cases and others in which prosecutors may be under political pressure to obtain a conviction. See Peter Applebome, “On the Fast Track from the Courtroom to Death Row,” N.Y. Times, 7 March 1994, sec. 4, at 2.Google Scholar

162 W. Seabom Jones, “Mothers, Don't Let Your Children Grow up to Be Lawyers,” in National Association for Law Placement, Report to Law School Deans and Hiring Attorneys on Legal Employment (Washington, D.C.: The Association, 1993).Google Scholar

163 Resnick, Judith, “Failing Faith: Adjudicatory Procedure in Decline,” 53 U. Chi. L. Rev. 494 (1986). If that is so, then the 35% figure understates the number of legally unfounded cases or defenses.CrossRefGoogle Scholar

164 Trubek, David et al., “The Costs of Ordinary Litigation,” 31 UCLA L. Rev. 72 (1983). Similarly, a study of medical malpractice claims filed in Florida concerning birth injuries found that 30% were closed with no payment. Sloan, F. & Van Wert, S., “Cost and Compensation of Injuries in Medical Malpractice,” 54 Law & Contemp. Probs. 131, 155 (1991).Google Scholar

165 Marshall, L., Kritzer, H., & Zemans, F., “Public Policy: The Use and Impact of Rule 11,” 86 Nw. U.L. Rev. 943 (1992).Google Scholar

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169 Nelson, William, “Contract Litigation and the Elite Bar in New York City, 1960–1980,” 39 Emory L. Rev. 441, 446 (1990).Google Scholar

170 Nelson provides little supportive evidence concerning this alleged shift in the legal ethics of corporate law firms. But neither is it implausible, especially in an era in which large law firms had to compete ever more fiercely to maintain their litigation departments and the growth in billings on which they had become dependent. See M. Galanter & T. Palay, Tournament of Lawyers: The Transformation of the Big Law Firms (Chicago: University of Chicago Press, 1991).Google Scholar

171 Winter, Ralph K., “Foreword: In Defense of Discovery Reform,” 58 Brooklyn L. Rev. 263, 264 (1992).Google Scholar

172 In a careful study of litigation in both state and federal courts in 1978, researchers associated with the Wisconsin Civil Litigation Project found that most civil cases—only some 12% of which involved claims of $50,000 or more—settled relatively quickly and hence in over half the case files there was no record of any pretrial discovery. And “rarely did the records reveal more than five separate discovery events.”Trubek et al ., 31 UCLA L. Rev. 72 (1983) (cited in note 163).Google Scholar

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174 Wayne Brazil, “Views from the Front Lines: Observations by Chicago Lawyers about the System of Civil Discovery,” 1980 A.B.F. Res. J. 219. For all the admitted waste in the discovery process, it is often ineffective. Large-case litigarors estimated that 50% of their cases are closed out with at least one party believing it knows something of significance that opposing parties do not know.CrossRefGoogle Scholar

175 Michael J. Kaufman, “The Role of Lawyers in Civil Litigation: Obstructors rather than Facilitators of Justice,” Ill. B.J., Dec. 1988, at 202, 203.Google Scholar

176 Rule 9(b) of the Federal Rules is designed to avoid unnecessary contentiousness by requiring plaintiffs to state claims of fraud “with particularity.” But according to Kaufman (id.), “One would be hard-pressed to envision a lawsuit with common law fraud, securities fraud or RICO claims that did not get bogged down in a Rule 9(b) dispute” because the plaintiffs lawyer, unwilling to help the defendant prepare, “typically resists the nonadversarial spirit of Rule 9(b) by alleging fraud in a general notice-pleading manner”.Google Scholar

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178 Nardulli, Peter, “The Societal Costs of the Exclusionary Rule Revisited,” 1987 U. Ill. L. Rev. 223, found that only 17% of motions to suppress physical evidence were granted, and only 5% of motions to suppress confessions. In Chicago, while motions to suppress were more often granted at pretrial hearing, those made before the trial court were granted only 12% of the time.Google Scholar

179 Stephen Brill, “U.S. v. Int'l Brotherhood of Teamsters and SEC v Drexel Lambert: When the Government Goes Judge Shopping,” in S. Brill, Trial by Jury (New York: American Lawyer Books/Touchstone, 1989).Google Scholar

180 John Privatera, “Using CERCLA's Natural Resource Damage Provision to Focus and Organize a State Environmental Penalty Case: A Personalized Case Study,” Nat'l End Enforcement J., March 1992, at 3.Google Scholar

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184 Under the tort law system, governmental officials said, few suits on behalf of infants are successful and those who win in court often have to wait a decade or more to see any money. Under the proposed system, they argued, “instead of a small number of individuals getting very large awards,” a much larger number of families would receive moderate compensation. Determinations about eligibility and benefits would be made by a panel consisting of two doctors, a lawyer, a parent of an injured infant, and an expert in developmental disabilities. Sarah Lyall, “A Bill Would Pay for Birth Injuries,” N.Y. Times, 21 April 1993, at B12.Google Scholar

185 Id.Google Scholar

186 Blumstein, J., Bovberg, R., & Sloan, F., “Beyond Ton Reform: Developing Better Tools for Assessing Damages for Personal Injury,” 8 Yale J. Reg. 171 (1990).Google Scholar

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189 Alschuler, A., “The Vanishing Civil Jury,” 1990 U. Chi. Legal F. 1, 2–3 (1990). Alschuler explains: “the civil trial is on its deathbed, or close to it, because our trial system has become unworkable. The American trial has been bludgeoned by lengthy delays, high attorneys' fees, discovery wars, satellite hearings, judicial settlement conferences, and the world's most extensive collection of cumbersome procedures. Few litigants can afford the cost of either the pretrial journey or the trial itself.”Id. at 5–6.Google Scholar

190 In Germany, mandatory worker compensation (industrial accident) insurance coverage was extended to cover students and travel to and from work and school, and thus covers at least one-third, possibly half, of all traffic accident injuries. F. Nutter & K. Bateman, The U.S. Tort System in the Era of the Global Economy 46 (Schaumburg, Ill.: Alliance of American Insurers, 1989) (“Nutter & Bateman, U.S. Tort System”). Switzerland extended workers compensation insurance coverage to injuries at home and at play. T. Duffy & R. Landis, “Workers Compensation in Switzerland,” 3 NCCI Digest, March 1988, at 31. In 1961, Germany enacted an “enterprise liability” law for compensating persons harmed by vaccines and added a similar law in 1978 for injuries caused by all pharmaceuticals. Nutter & Bateman, supra at 44. Sweden, in addition to making social insurance and medical care the primary recourse for tort victims, established special no-fault insurance regimes for motor vehicle injuries, injuries to patients caused by medical procedures, and pharmaceuticals. Carl Oldherz, “Security Insurance, Patient Insurance, Pharmaceutical Insurance in Sweden,” 34 Am. J. Comp. L. 637 (1986); Jan Hellner, “Compensation for Personal Injury: The Swedish Alternative,” 34 Am. J. Comp. L. 613 (1986).Google Scholar

191 See Stephen Sugarman, “The California Vehicle Injury Plan (VIP): Better Compensation, Fairer Funding, and Greater Safety” (Working Paper, Earl Warren Legal Institute, University of California, Berkeley, 1993).Google Scholar

192 Research on comparative liability insurance costs is sparse and remains anecdotal, but it all points in the same direction. Dow Chemical, whose sales abroad equal those in the United States, said its 1986 legal and insurance expenses in America were five times its overseas costs for comparable coverage, Nutter & Bateman, U.S. Tort System 20. Summarizing a 1987 business round table discussion at the Fletcher School at Tufts, Nutter & Bateman say: “It has been estimated that German producers pay insurance premiums for goods exported to the United States that are four to six times higher than the premiums on exports to other countries.” In Canada, physicians in 1986 paid medical malpractice protection fees ranging from $288 to $3,500 a year depending on their specialties; in the same year, St. Paul Insurance Co., a leading malpractice underwriter, said its typical premiums ranged from $1,365 annually for an Arkansas general practitioner to $106,000 for a Miami neurosurgeon. Peggy Berkowitz, “In Canada, Different Legal and Popular Views Prevail,” Wall St. J., 4 April 1986, at 21.Google Scholar

193 Saks, , 140 Pa. L. Rev. (cited in note 8).Google Scholar

194 Nutter & Bateman, U.S. Tort System 16 (cited in note 189).Google Scholar

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196 For example, in 1984 the California State Bar supported a bill that would authorize courts to force parties who reject a settlement offer and then do worse at trial to pay the other side's attorneys' fees. The California Trial Lawyers Association opposed the bill, and for two years in a row it died in the ATLA-friendly state senate judiciary committee. Vic Pollard, “Sacramento Scene,” Cal. Law., Dec. 1984, at 55.Google Scholar

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197 Nutter & Bateman, The U.S. Tort System 16–18.Google Scholar

198 Steve Nelson, “Trial Lawyers Blaze Aggressive Trail,” Legal Times, 14 March 1983, at 1.Google Scholar

199 L. Gordon Crovitz, “Lawyers Seek Senators as Advocates against Quayle Reforms,” Wall St. J., 18 Sept. 1991, at A15. In the 1992 elections, ATLA's political action committee was the nation's fourth largest in total contributions, ranking ahead of the National Education Association and falling just short of the National Association of Realtors, the American Medical Association, and the Teamsters. “Who Gave the Most,” N.Y. Times, 11 June 1993, at A12.Google Scholar

200 The “American rule” provides that each party in civil cases, win or lose, is responsible for paying her own counsel fees. Under this rule, as compared to a rule whereby the loser pays the winner's counsel fees—as in England and in most European countries—it is less risky for plaintiffs to file and pursue long-shot cases, and more tempting for defendants to discourage just claim by mounting costly, time-consuming legal defenses. There are reasonable arguments to be made on both sides of the counsel fee issue. The relevant point here is that organized American lawyers' groups helped perpetuate the rule that tends to encourage, not reduce, adversarial legalism.Google Scholar

201 A. Sanbom, “Derailing the Rules,” Nat'l L.J., 24 May 1993; R. Schmitt, “Lawyers United against Plan to Speed Suits,” Wall St. J., 8 June 1993, at B7.Google Scholar

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203 Rabin, , 25 San Diego L. Rev. at 24, 34 (cited in note 172).Google Scholar

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205 The Hart-Magnusen Bill was supported by the Consumer Federation of America, the Teamsters, the United Auto Workers, the AFL-CIO, and the American Association of Retired Persons. One prominent consumer advocate who did not support the bill was Ralph Nader, who is widely assumed to receive a good deal of financial support from ATLA. P. Heymann & L. Liebman, “No Fault, No Fee: The Legal Profession and Federal No-Fault Insurance Legislation” in Heymann & Liebman, eds., The Sod Responsibilities of Lawyers (Westbury, N.Y.: Foundation Press, 1988).Google Scholar

206 Id. at 325–30.Google Scholar

207 Henderson, J. & Twerski, A., “Stargazing: The Future of American Products Liability Law,” 66 N.Y U.L. Rev. 1332, 1336 (1991).Google Scholar

208 Peter Schuck, “The Worst Should Go First: Deferral Registries in Asbestos Litigation,” 15 Harv. J.L. & Pub. Pol'y 541, 553–68 (1992); Lester Brickman, “The Asbestos Litigation Crisis: Is There a Need for an Administrative Alternative?” 13 Cardozo L. Rev. 1819 (1992); James S. Kakalik et al., Costs of Asbestos Litigation (Santa Monica, CA: RAND Institute for Civil Justice, 1983).Google Scholar

209 One study of permanent disability claims indicated that in Maryland, New Jersey, and some categories of cases in Wisconsin, “dueling adversary experts” were employed in 63%, 79%, and 63% of cases, respectively, and “friction costs” added up to 38%, 46%, and 42% of the total disability payments awarded (WCRI, Reducing Litigation: Evidence from Wisconsin (Cambridge, Mass.: Workers Comp. Research Institute, 1988).Google Scholar

210 Another demonstrated method for drastically reducing adversarial legalism is the “final-offer adjudication” rule adopted for some categories of cases in Wisconsin. The adjudicator is pledged not to “split the difference” but to adopt the percentage of disability found by either the employee's or the employer's physician; in consequence, extremely divergent assessments are uncommon. Together with a more aggressive staff role in making initial determinations, this Wisconsin plan has resulted in enormous reductions in attorney use and “friction costs.” Id. One has to wonder what role claimants' attorneys have played in preventing diffusion of this reform.Google Scholar

211 See J. Birnbaum, “Political Contributions of Narrow-Focus Groups Seen by Some as Growing Campaign Funds Issue,” Wall St. J., 22 Dec. 1989, at A8.Google Scholar

212 See Richard Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic 111–22, 157–83 (New York: W. W. Norton, 1971); Arnold Paul, The Conservative Crisis and the Rule of Law: Attitudes of Bar und Bench, 1887–1985 (Ithaca, N.Y.: Cornell University Press, 1960); Benjamin Twiss, Lawyers and the Constitution: How Laissez-Fare Came to the Supreme Court (Princeton, N.J.: Princeton University Press, 1942); Shamir, 27 Law & Soc'y Rev.(cited in note 22).Google Scholar

213 See Bruce Ackerman, Reconstructing American Law (Cambridge, Mass.: Harvard University Press, 1984).Google Scholar

214 See pp. MS. 9–11 000–00 supra.Google Scholar