by Eric Helland and Alexander Tabarrok. Oakland, CA: The Independent Institute, 2006. 168pp. Paper. $15.95. ISBN: 0945999992.
Reviewed by Gabriel H. Teninbaum, Suffolk University Law School . Email: gteninbaum [at] suffolk.edu.
In the highly political tort reform war, two economists, Eric Helland and Alexander Tabarrok, have fired a salvo criticizing several aspects of the civil justice system in their new book, JUDGE AND JURY. This book uses information drawn from databases of published jury verdicts to challenge the accuracy of several bits of conventional wisdom regarding the health of the tort system. In so doing, the authors present detailed, interesting analysis on topics, including race and poverty as factors affecting the size of jury verdicts, favoritism for plaintiffs in jurisdictions where judges are elected in partisan contests instead of appointed, and the appropriateness of the contingent fee as a method of financing tort litigation. The book is very readable, includes a detailed explanation of the design of the study, and will appeal to scholars with an interest in the tort reform debate and litigation in general.
Skeptical readers will find no shortage of statements by the authors to create a question as to the objectivity of their analysis. Throughout the book, the authors launch ad hominem attacks on attorneys and plaintiffs themselves, at times analogizing lawyers to pornographers (p.103), hit-men (p.120), and claiming that “tobacco, breast implant and asbestos cases (among many others) [have] little or no scientific justification” (p.104). Further, there is no mention in this book of the role of “big business” (e.g. insurance and pharmaceutical industries) on creating the tort crisis, nor any statement recognizing the importance of allowing consumers the right to recover when they are injured by the fault of a liable defendant.
Apparent biases aside, JUDGE AND JURY is thought-provoking. In the first substantive section of the book, the authors discuss the “Bronx Jury” effect, which is the idea that poor, minority juries use their power to redistribute wealth in favor of plaintiffs without regard to the value of a case. By compiling a dataset drawn from a CD-Rom published by Jury Verdict Research, which includes the results of over 100,000 trials, as well as information from the Civil Justice Survey of State Courts (which is a random sample) and publicly available information regarding the results of federal court tort cases, the authors determine that as the poverty rate of a county rises, so to do awards to plaintiffs. Next, the authors show that race, like poverty, correlates to higher awards for personal injury plaintiffs. To prove that race combined with poverty magnifies pro-plaintiff verdicts, the authors demonstrate that in impoverished [*517] counties with a white-concentrated populace awards drop, but in minority-concentrated, impoverished counties, awards increase dramatically. Based on this analysis, the authors conclude that the Bronx Jury effect does exist, and lawyers who choose venues for their lawsuits in regions of the country that are poor and largely minority greatly increase their chances of success.
However, in their discussion of the Bronx Jury effect, Helland and Tabarrok fail to discuss some additional data that put into question the idea that race and poverty drive higher plaintiff awards. In the wake of the book’s publication, the American Enterprise Institute promoted a panel discussion on JUDGE AND JURY, a videotaped version of which is available online (http://www.aei.org/events/eventID.1329,filter.all/summary.asp#). One of the presenters at the AEI event, Professor Theodore Eisenberg of Cornell Law School, pointed out that the same dataset used by the authors in JUDGE AND JURY to show the existence of the Bronx Jury effect in personal injury cases could also be used to show that there was no significant increase in awards to plaintiffs among poor/minority juries in employment discrimination cases. Given that the authors’ theory is that race plays a factor in higher jury awards in personal injury cases, it would have been helpful if they attempted to explain the rather contradictory evidence that there is no apparent Bronx Jury bias in favor of plaintiffs in discrimination cases, which is an area of litigation where one would reasonably expect poor, minority juries to be most sympathetic to plaintiffs.
The second and third substantive sections of JUDGE AND JURY explore the effect of judges on the perceived tort crisis. Specifically, the authors hypothesize that judges favor local plaintiffs over foreign corporations, and that partisan elections make judges more plaintiff-friendly. To test these hypotheses, the authors compile two datasets using the residency of corporate defendants and the manner in which a judge is installed on the bench (i.e., elected vs. appointed). Helland and Tabarrok find that, in fact, there is a bias against out-of-state corporations when they are facing local plaintiffs, and that the bias is more pronounced in states that have judges elected in partisan contests over those that do not. The authors attribute the judges’ bias to be the need of elected judges to cater to their constituents (i.e., the plaintiffs), as opposed to out-of-state corporations who do not donate to their campaigns. However, the sample size for establishing judicial bias is relatively small, and it also requires the reader to accept the seemingly far-fetched idea that a statistically significant number of judges ignore their oaths of impartiality for the purpose of favoring plaintiffs in the hopes of receiving campaign contributions.
The final subject the authors consider is the effect of the contingent fee as a means of financing litigation. Here, the authors find that, although contingent fees are imperfect, there are several positive reasons to use this payment method. First, the authors approve of contingent fees because they are a private contract, and part of their distaste for the current state of American law is [*518] their perception that there is a reduced respect for the law of contract. Helland and Tabarrok next use collected data to posit that contingent fee arrangements motivate lawyers to succeed on behalf of clients, force lawyers to assess honestly the quality of a case at its outset, encourage attorneys to drop cases that would not likely be successful at trial, and in so doing, eliminate frivolous lawsuits.
The concluding section of the book is short and leads only to a suggestion that “marginal change may be justified” to alter the manner in which judges and juries decided cases (p.126). Here, it seems the authors must stretch to define even those marginal changes. For example, after making the reasonable suggestion that courts and lawmakers should work to assure that jurors understand scientific evidence presented to them in complex cases, the authors take time to gripe that some judges refuse to allow jurors to take notes to analyze the “blizzard of junk science” which they face (p.131). Helland and Tabarrok give kudos to Congress for passing the 1999 Class Action Fairness Act, which limits venue shopping in class action lawsuits, but offer no concrete further steps to be taken. They recognize that impartiality is important for judges and juries but suggest no steps to increase it. To some extent, the authors should be credited for not reaching to offer suggestions for systemic changes in areas beyond their expertise, such as crafting legislation or evidentiary rules. Nonetheless, the conclusions, while inoffensive, lead the reader to wonder about the value of the research when there does not appear use for it in creating change.
JUDGE AND JURY provides interested readers with some good food-for-thought. As is the case in many writings on this controversial topic, it seems at times that the authors use data to fit their preconceived notions about tort reform. As a result, JUDGE AND JURY is a fine read, but – like other material on this topic – should be read in conjunction with research performed by scholars who offer a different, perhaps more balanced, perspective.
© Copyright 2007 by the author, Gabriel H. Teninbaum.