American Constitution Society: Judicial Hostility to Litigation and How It Impairs Legal Accountability for Corporations and Other Defendants May 2010 by Scott A. Moss, Associate Professor of Law at the University of Colorado Law School. In this Issue Brief, Professor Moss explains how the Supreme Court’s jurisprudence since the 1990s has moved away from treating litigation “as an important tool for redressing grievances, deterring wrongdoing, and spurring social reform” toward a negative view of litigation, a view that emphasizes litigation’s burdens on defendants. Read more.
Judicial Expenditures and Litigation Access: Evidence from Auto Injuries by Paul Heaton & Eric Helland Claremont-McKenna College and RAND, January 2010, Abstract: "Despite claims of a judicial funding crisis, there exists little direct evidence linking judicial budgets to court utilization. Using data on thousands of auto injuries covering a 15-year period, we measure the relationship between state-level court expenditures and the propensity of injured parties to pursue litigation. Controlling for state and plaintiff characteristics and accounting for the potential endogeneity of expenditures, we show that expenditures increase litigation access, with our preferred estimates indicating that a 10% budget increase increases litigation rates by 3%. Consistent with litigation models in which high litigation costs undermine the threat posture of plaintiffs, increases in court resources also augment payments to injured parties." Access full report.
Baylor Law Review 2007: Judicial Survey: Straight from the Horse's Mouth: Judicial Observations of Jury Behavior and the need for Tort Reform. Conclusion: "The survey results confirm that most Texas trial judges do not see significant numbers of frivolous filings by people who have no business suing, and plaintiffs with legitimate suits are much more likely to be under compensated than to receive any windfall. Two primary goals for tort jurisprudence are for the victim to receive full compensation and to deter the tortfeasor, and when victims are not fully compensated and tortfeasors are not deterred, neither goal is met." Summary, Full Survey
Judicial Tort Reform, The University of Texas at Austin School of Law Publication by David A. Anderson, The Review of Litigation, Winter, 2007, Summary: "... Legislatures are the source of most of the changes we think of as tort reform - caps on damages, limitations on joint and several liability, requirements that payments from collateral sources be deducted from damages, pre-screening procedures for medical malpractice cases, restrictions on expert testimony, shorter statutes of limitations or statutes of repose, heightened proof standards, and restrictions on punitive damages. ... Until 2003, the tort reform lobby in Texas did not have the votes to pass its legislation without support from, or acquiescence of, some of its opponents. ... But the Texas Supreme Court held as a matter of law that the physician was under no duty to disclose that the mastectomy might turn out to be unnecessary because that "is not a risk that is "inherent to' [sic] and "inseparable from' the surgical procedure itself. ... At that time, a health care liability claim was defined as "a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient ..." Access full report.