Tort System Resources Journal of Empirical Legal Studies, Volume 6, Issue 4, 969–1002, December 2009, U.S. Chamber of Commerce Liability Survey: Inaccurate, Unfair, and Bad for Business, Theodore Eisenberg
It is surprising how little Chamber respondents know and how unresponsive they are to changes in their legal environment. This raises a question about the quality of the lawyers who respond to the survey. The survey methodology may generate a kind of lemon effect. Poorly informed, inflexible lawyers may be associated with companies’ decisions to press to trial and trial losses. These weak lawyers are the ones most likely to be upset and to respond to the survey. They provide a biased picture of liability systems that is out of touch with reality.
The consistently low ranking of many states despite changes in their legal environments may also suggest a political economy explanation. The Chamber needs devils to justify its tort reform budget. If it does not label at least some states as in desperate need of Chamber reform efforts, it might be less able to raise money from members. The Chamber thus needs liability villains and its survey annually assures that they are perceived to exist. The survey provides a respectable-looking social science gloss to statistically unsophisticated policymakers and media outlets.
The Chamber’s willingness to vilify states and counties to promote both itself and legislation may be the product of the same mentality that has led to shocking business failures. Companies, such as General Motors, with once seemingly impregnable market positions, spent excess time and effort lobbying for and against laws rather than seeking to improve their products. “If Detroit had spent less time lobbying for government protection and more on improving its products it might have fared better.”The Chamber may be leading other members down a similar path. A credible argument exists that the Chamber harms business by irrationally discouraging investment. Based on the views of risk managers and those who seriously study the effect of the tort system, the Chamber may also unnecessarily endanger the public safety by decreasing tort law’s deterrent effect.
The attention the survey receives illustrates the critical need for better, reliable, systematic information about the legal system. Absent such information, the informational vacuum will be filled by questionable special-interest data such as the Chamber’s.In this respect, the survey has had a positive effect. It has prompted at least one state, West Virginia, to start a data-gathering program to assure accurate information about legal outcomes.It can then assess part of its judicial system’s performance based on actual events. Other states should follow West Virginia’s data initiative to assure widespread objective knowledge about how states’ legal systems function.
The information must not only be gathered, but readily available for dissemination. Surveys on important issues that are as flawed as the Chamber’s usually have muted impact because the other side to an issue responds with its own surveys. Democrats and Republicans often generate dueling polls and media campaigns on issues of public importance and likely undermine each others’ most unsupportable claims. But the Chamber attacks an institution that is not accustomed to defending itself. State judiciaries lack the resources to respond to the Chamber’s media campaigns and professional norms prevent the judiciaries from fully responding even if they could. Members of the bar and the social science community should act to generate and disseminate information needed to present an objective picture of court performance.