Perhaps, different reforms such as Contingency Fee Rule that increases the Earnings of Lawyers, are being offset by other reforms such as the Split Recovery that decreases the Earnings of Lawyers. In any case, the combined negative effects of tort reforms are greater than their combined positive effects on the market for lawyers.

Tort reform is a favorite cause for many business leaders and right-leaning politicians, who contend that out-of-control lawsuits throttle growth and inflate costs, particularly in healthcare. Less is said about how such reforms might affect the ability of individuals to recover damages for injuries suffered through another party's negligence. On that count, Texas--where efforts at tort reform have been energetic and successful--provides an opportunity to appraise the outcome for plaintiffs and their lawyers, an opportunity that Stephen Daniels and Joanne Martin take full advantage of in this timely and provocative work. Because much of the action on tort reform takes place on the state level, a look at the experience of Texas, a large and important state with a very active plaintiff's bar, is especially instructive. Plaintiffs' lawyers work on a contingency fee basis, collecting compensation for themselves as a percentage only if they win. Reduce lawyers' ability to use contingency fees as compensation, as tort reform inevitably does, and you reduce their economic incentive to do this work. Daniels and Martin’s study bears this out. Drawing on over 20 years of research, extensive surveys and interviews, the authors explore the impact the tort reform movement in Texas has had on the ability of plaintiffs to obtain judgments--in short on private citizens' meaningful access to the full power of the law. In the course of their analysis, the authors explain the history and economics behind the workings of the plaintiffs’ bar. They explore how lawyers select cases and clients, as well as the referral process that moves cases among lawyers and allows for specialization. They also examine the effects of medical malpractice reforms on plaintiffs' lawyers--reforms that often close the courthouse doors to certain types of people--tort reform's "hidden victims." Plaintiffs' lawyers are the civil justice system's gatekeepers, providing meaningful access to the rights the law provides. Daniels and Martin’s thorough and fair-minded work offers a unique and sobering perspective on how tort reform can curtail this access--and thus, the legal rights of American citizens.

This report offers a framework for assessing the effects of tort reforms. It attempts to provide a coherent structure for systematically thinking about how research can contribute to the policy debate over tort reform. It identifies four basic policy issues critical to assessing the effects of tort reforms on the tort system: (1) how soon we can expect to see effects of reforms; (2) whether reforms have affected the outcomes of disputes; (3) who won, who lost, and how much; and (4) whether reforms have affected economic behavior. The author points out that the kinds of data needed to assess the effects of reform are generally not available, and suggests that three types of new data collection systems need to be considered: (1) systematic efforts to obtain data from insurers and self-insured defendants on the aggregate outcomes of liability claims; (2) special surveys of claimants, the bar, and insurers to obtain the detailed individual claim information needed to identify the winners and losers in the reformed system; and (3) systems for collecting information both on the other factors that affect the behavior of participants in the tort system, and on economic outcomes and injuries.

"Drawing on an unusually rich trove of data, the authors have refuted more politically convenient myths in one book than most academics do in a lifetime." —Nicholas Bagley, professor of law, University of Michigan Law School "Synthesizing decades of their own and others’ research on medical liability, the authors unravel what we know and don’t know about our medical malpractice system, why neither patients nor doctors are being rightly served, and what economics can teach us about the path forward." —Anupam B. Jena, Harvard Medical School Over the past 50 years, the United States experienced three major medical malpractice crises, each marked by dramatic increases in the cost of malpractice liability insurance. These crises fostered a vigorous politicized debate about the causes of the premium spikes, and the impact on access to care and defensive medicine. State legislatures responded to the premium spikes by enacting damages caps on non-economic, punitive, or total damages and Congress has periodically debated the merits of a federal cap on damages. However, the intense political debate has been marked by a shortage of evidence, as well as misstatements and overclaiming. The public is confused about answers to some basic questions. What caused the premium spikes? What effect did tort reform actually have? Did tort reform reduce frivolous litigation? Did tort reform actually improve access to health care or reduce defensive medicine? Both sides in the debate have strong opinions about these matters, but their positions are mostly talking points or are based on anecdotes. Medical Malpractice Litigation provides factual answers to these and other questions about the performance of the med mal system. The authors, all experts in the field and from across the political spectrum, provide an accessible, fact-based response to the questions ordinary Americans and policymakers have about the performance of the med mal litigation system.

Why are there so many frivolous lawsuits? How much money does America waste on litigation every year? Out of Balance counts the cost of our out-of-control litigation system and identifies the legal procedures and economic incentives that effectively reward lawyers who pursue weak and even silly legal claims. Using real world examples, Jonathan B. Wilson (an attorney and the general counsel of a publicly traded company) describes how the pursuit of attorneys' fees rests at the heart of our litigation system. He recounts alternative proposals to change the law and sets out prescriptions for reform designed to deter cases that should never be filed and resolve those that are. "[Out of Balance shows] how the American justice system front-loads scanty information, unpredictability, and the certainty of escalating legal costs to leverage weak or non-meritorious cases and victimize defendants of every kind." --John H. Sullivan, President, Civil Justice Association of California "Wilson takes an evenhanded approach to the subject of lawsuit reform, reporting in equal measure the clear evidence of America's runaway tort system that favors trial lawyers and the alternatives for systemic procedural reform that will level the playing field for all participants in the legal system. . . . [Out of Balance is] a behind-the-scenes user's guide for reform-minded business advocates and lawmakers who want to fight back and win."--Steven B. Hantler, DaimlerChrysler Out of Balance is an invaluable guide for changing our legal system and restoring its sense of balance and fairness.

This article examines tort law and the tort reform debate through the lens of public choice. The article uses the tools of public choice to explain the development of tort law over the past few decades and its evolution away from efficient rules. The article identifies a supply and demand dynamic for the evolution of expansive tort liability and damages and complex tort law doctrines. On the demand side, the evolution has been driven by the economic interests of plaintiffs' lawyers seeking to expand tort liability and damages. Defense lawyers share an economic interest in this development. Other interests, including insurers, manufacturers, and consumers, are shown to lack either the incentive to oppose these developments or are plagued by collective action problems from preventing them. On the supply side, the provision of expansive tort liability by judges is seen to be consistent with the self-interest of judges seeking power over society and status within the bar and academia. Finding the judicial process an unlikely avenue for tort reform, the article turns to the question of legislative tort reform. Although plagued by many of the same difficulties, legislative tort reform may hold out the possibility of greater consumer and manufacturer influence to counterbalance the interests of lawyers and judges. The article concludes with a model of how tort reform can succeed in the face of these obstacles. This model relies on the Peltzman-Becker model of regulation and points to Governor George W. Bush's success in enacting tort reform in Texas as consistent with the proffered model.