The Politics of Torts: Explaining Litigation Rates in the American States

Abstract

Debate rages over whether Americans have become enormously litigious, but little research considers why Americans file cases in the first place or adequately considers rates of litigation over time. This article examines tort filings in ten representative states over a 20-year period and analyzes the impact of social, political, policy, and legal system factors that may account for case filings. We find that filing rates vary substantially over time within individual states, which adds to cautions about claims of general litigiousness. Our analysis also demonstrates that social complexity, opportunities for political participation, and social policy are the most important explanations for variations in filing rates. The tendency of Americans to use the courts to resolve disputes is related to the milieu in which they live and how the political system responds to demands for participation and social support.

Do Institutions Really Matter? Assessing the Impact of State Judicial Structures on Citizen Litigiousness

“…Social development theory suggests that states with high population density, high poverty rates, significant levels of income inequality, and relatively urbanized and industrial populations are more likely to experience increases in tort filings (Yates, et al 2001;Harrington & Ward 1995). The increase in litigation rates may be attributed to two factors.…”

“…In short, strangers are more likely to go to court with one another than are those with ongoing social interaction and close-knit community bonds. As a consequence, legal systems in socially complex states provide the cheapest avenue of access to formal political processes (Glick 2004;Yates, et al 2001;Atkins & Glick 1976). The more complex a society, the greater the need for the formal dispute resolution process of the courts.…”

“…Studies employing these two primary theoretical orientations have met with varying success and empirical results have not always been very consistent. Some of this inconsistency is likely attributable to differences in studies' locus or time frame; however, a handful of scholars have taken this state of affairs as a cue to broaden the theoretical approach to account for institutional legal considerations (Harrington and Ward 1995;Posner 1997;Hanssen 1999;Yates et al 2001).…”

“…Scholars have attempted to explain variation in rates of litigation, both over time and across jurisdictions, by investigating legal and extra-legal determinants of citizens' invocation of the court system (Daniels 1982;Grossman et al 1982;Grossman and Sarat 1975;Harrington and Ward 1995;Marvel 1994;McIntosh 1983McIntosh , 1990Posner 1997;Roper 1986;Schmidt, Browne, and Lee 1997;Stookey 1986;Yates, Davis, and Glick 2001). Such studies have primarily drawn upon two broad theoretical orientations to account for differences in legal mobilization -political culture and social development.…”

The Antecedents of Disputes: Complaining and Claiming

“…Probably the most widely used approach to assessing claiming patterns is to examine litigation rates (number of cases per some unit of population). There have been longitudinal studies at both national and subnational levels (Grossman and Sarat 1975, McIntosh 1980-81, Daniels 1982, Daniels 1984, Daniels 1985, McIntosh 1989, Van Loon and Langerwerf 1990, Wollschläger 1990, Wollschläger 1997, cross-national studies (Galanter 1983, Blankenburg 1992, Blankenburg 1998, Wollschläger 1998, and at least in the United States studies comparing subnational units (Grossman et al 1982, Yates et al 2001, Jacobi 2009, Yates et al 2010. Some of the studies are purely description, documenting differences and trends in litigation rates (i.e., patterns of secular increase, cyclical patterns, etc.…”