Research & Studies

• 'Opt-In' vs. 'Opt-Out' Procedures in Collective and Representative Litigation
  Institute for Legal Reform  |  July 28, 2010
  
  One of the most significant safeguards against lawsuit abuse in collective litigation is the adoption of an “opt-in,” rather than an “opt-out” procedure. It remains to be determined which of these two procedures EU policymakers will select as part of any collective redress regime. In this paper, ILR discusses the key differences between the opt-in and opt-out procedures, and explains why – if the EU adopts any collective redress procedures – an opt-in mechanism would be better for European consumers, better for European businesses and better for the administration of civil justice in the European Union.
• Tort Liability Costs for Small Business
  Institute for Legal Reform  |  July 8, 2010
  
  

  Small businesses are the engine of job growth in this country.  At a time when unemployment rates are high, it is important to understand the forces that impair the ability of small businesses to thrive and grow. This report contains the findings of a study that estimates the tort liability costs that fall on small businesses. It was commissioned by the U.S. Chamber Institute for Legal Reform (ILR) and conducted by NERA Economic Consulting (NERA). The data reveal that small businesses bear an extraordinary tort liability cost burden.

• Think Globally, Sue Locally: Out-of-Court Tactics Employed by Plaintiffs, Their Lawyers, and Their Advocates in Transnational Tort Cases
  Institute for Legal Reform  |  June 21, 2010
  
  

  This new study documents how plaintiffs’ attorneys and advocates are working with foreign plaintiffs and employing a common set of aggressive, out-of-court tactics that approach, straddle and sometimes cross ethical lines to gain litigation advantages against transnational companies. The first-of-its-kind study, released June 21, 2010 by the U.S. Chamber Institute for Legal Reform (ILR), also shows a dramatic increase in the number of global tort claims or transnational tort cases filed in the U.S. against American companies for alleged injuries that occur abroad. 

• A Brief Synopsis of Think Globally, Sue Locally: Out-of-Court Tactics Employed by Plaintiffs, Their Lawyers, and Their Advocates in Transnational Tort Cases
  Institute for Legal Reform  |  June 21, 2010
  
  Over the past 15 years, there has been a sharp rise of lawsuits brought against United States companies, as well as foreign companies with a substantial U.S. presence, that are premised on alleged personal or environmental injuries that occur overseas. Most of those transnational tort lawsuits have been filed in the United States by plaintiffs’ class action firms, public interest attorneys, and non-governmental organizations (NGOs), while a growing number of notable actions also have been filed in foreign courts, with the plaintiffs seeking to obtain judgments they can enforce in the United States. With increasing frequency, plaintiffs, their attorneys and their advocates are employing aggressive out-of-court tactics that approach, straddle and sometimes cross ethical lines in seeking to gain litigation advantages. Think Globally, Sue Locally studies the trends associated with those tactics.
• The Centre Cannot Hold: The Need for Effective Reform of the U.S. Civil Discovery Process
  Institute for Legal Reform  |  May 13, 2010
  
  This paper examines the escalating crisis in the U.S. civil discovery system and how it can be remedied. Part I discusses the origins and development of civil discovery in the U.S., which sowed the seeds of the current crisis. Part II discusses how electronic discovery has led to increased abuses of the discovery system. Part III discusses prior efforts to reform civil discovery in the U.S. and why they have been largely ineffective. And Part IV discusses potential remedies to the problem, taking particular note of the relative merits of the approaches being adopted in various states, as well as reforms suggested by practitioners, such as the American College of Trial Lawyers.
• Lawsuit Climate 2010: Ranking the States
  Institute for Legal Reform  |  March 22, 2010
  
  

  The 2010 State Liability Systems Ranking Study was conducted for the U.S. Chamber Institute for Legal Reform to explore how reasonable and balanced the states’ tort liability systems are perceived to be by U.S. business. Participants in the survey were comprised of a sample of 1,482 in-house general counsel, senior litigators or attorneys, and other senior executives who indicated they are knowledgeable about litigation matters at companies with at least $100 million in annual revenues.  "Lawsuit Climate 2010: Ranking the States" is a summary of the full survey.

• 2010 U.S. Chamber of Commerce State Liability Systems Ranking Study
  Institute for Legal Reform  |  March 22, 2010
  
  

  The 2010 State Liability Systems Ranking Study was conducted for the U.S. Chamber Institute for Legal Reform to explore how reasonable and balanced the states’ tort liability systems are perceived to be by U.S. business. Participants in the survey were comprised of a sample of 1,482 in-house general counsel, senior litigators or attorneys, and other senior executives who indicated they are knowledgeable about litigation matters at companies with at least $100 million in annual revenues.  This is the complete study.

   

• 2009 Update on U.S. Tort Cost Trends
  Towers Perrin  |  December 16, 2009
  
  
• The Abuse of Medical Diagnostic Practices in Mass Litigation: The Case of Silica
  RAND Institute for Civil Justice  |  December 1, 2009
  
  
• Third Party Financing: Ethical and Legal Ramifications in Collective Actions
  Institute for Legal Reform  |  November 19, 2009
  
  This paper begins with an overview of third party litigation financing. It next examines the current third party financing practices of a number of European jurisdictions. Then, it sets forth ILR’s critique of the practice, particularly the incentives it creates to engage in frivolous and abusive litigation. ILR also presents a case study of the Commonwealth of Australia, the first jurisdiction to permit third party litigation funding, where such funding has dramatically increased litigation and given investors pervasive — even total — control over a claimant’s case. Finally, the paper concludes that such funding should be prohibited altogether in collective litigation.
• 101 Ways to Improve State Legal Systems
  Institute for Legal Reform  |  October 28, 2009
  
  

  This document provides a compilation of legal reforms in 23 areas for potential consideration by state legislatures. Within each area, the report briefly discusses the purpose of and need for each reform. In several areas, the report notes whether the reform is needed in particular states.

   This report does not provide an assessment of the general political feasibility of enacting legal reform in any individual state. Some states, such as Texas, have a reputation as being generally supportive of legal reform. Other states, such as Massachusetts, are hostile to any legislation that would be opposed by the plaintiffs’ bar. The analysis in this report does not purport to include any such state-specific political evaluation, which must occur before the effectiveness and feasibility of any reform can be fully understood.

• Selling Lawsuits, Buying Trouble: The Emerging World of Third-Party Litigation Financing in the United States
  Institute for Legal Reform  |  October 28, 2009
  
  This paper begins with an overview of third-party litigation financing. It next examines current third-party financing practices in the United States. It then sets forth a critique of the practice, particularly the incentives it creates to engage in frivolous and abusive litigation. In this section, the paper also presents a case study on the Commonwealth of Australia, the first jurisdiction to permit third-party litigation funding, where such funding has dramatically increased litigation and given investors pervasive — even total — control over a plaintiff’s litigation. Finally, the paper proposes that third-party litigation financing be prohibited in the United States to prevent these abuses. At the very least, the paper concludes, such funding should be banned in class actions and other forms of aggregate litigation.
• Promoting Merit in Merit Selection
  Institute for Legal Reform  |  October 28, 2009
  
  

  The U.S. Chamber Institute for Legal Reform examined the various state merit selection practices for fairness, effectiveness and independence. Arizona leads the nation with the procedures it has put in place to fulfill the promise of true nonpartisan “merit” selection. This document describes what we believe are the “best practices” that have come from the writings of legal experts in this area and from the real-world Arizona experience.

   

• Health Hazard: Litigation Increases Medical Costs, but Lawyers Block Reform
  The Manhattan Institute's Trial Lawyers Inc.  |  October 13, 2009
  
  
• National Voter Survey: Health Care Reform and the Legal System
  Common Good and the Committee for Economic Development  |  September 10, 2009
  
  
• Lawyers' Creatives -- Medical Malpractice Findings
  Institute for Legal Reform  |  September 8, 2009
  
  

  Both the spending and frequency of lawyers mass tort solicitation creatives focusing on medical malpractice claims have increased massively since 2004. From 2004-2008 the spot count of these advertisements has increased over 1400% while the spending on these types of ads shot up over 1500% percent.

   

   

• Killing Americans by Stifling Medical Innovation: The Medical Device 'Safety' Act of 2009
  The Heritage Foundation  |  August 4, 2009
  
  
• The Rise and Fall of Lead Paint Litigation in Ohio
  The Federalist Society  |  May 18, 2009
  
  
• The Rise and Fall of Lead Paint Litigation in Ohio
  The Federalist Society  |  May 18, 2009
  
  
• State Court Docket Watch Spring 2009
  The Federalist Society  |  March 19, 2009