Complex and International Litigation and Empirical Litigation Studies: Festschrift in Honor of Professor Deborah Hensler, Editors’ Introduction

Before we can evaluate and critique the legal system, we must first understand what that system is doing. Throughout her academic career, Stanford Law School Professor Deborah Hensler has sought to discover how things really work, using systemic data collection and analysis. Her work has been a preeminent example of scholarship that fuses deep social science expertise with equally deep legal knowledge.

Everyone has a theory, perhaps several, about what is happening in tort law. But Professor Hensler has been at the forefront of pressing scholars and policy makers not to look at what they hope is happening, or what they fear is happening, but at what is actually happening in the law in action. She has examined whether the assumptions underlying various policies are correct, and whether legal changes work as anticipated (or do not), both in the United States and abroad.

This edition of the Journal of Tort Law publishes papers presented at the Stanford Law School symposium in honor of Professor Hensler, the Judge John W. Ford Professor of Dispute Resolution. Professor Hensler’s work has given us all a worthy challenge: not only to think about the legal system but to know it — to let data lead the theory, and not the other way around.

The contributions to this Festschrift reflect the range and influence of Professor Hensler’s work. Professors Anderson, Buenaventura, Mahler, and Pace update Hensler’s pioneering work on the claiming behavior of those who suffer significant physical harm or health injury. They have produced an independently important study in their own right. According to their findings, few who are injured or fall ill believe that someone else is responsible for their suffering, and even among the group that do, relatively few seek compensation from those they deem responsible. Still fewer contact attorneys or file lawsuits. Their findings have important implications for assessing the success both of tort law and of the larger social welfare system.

Writing together, Professor Johan Gelbach and Professor Hensler herself undertake the difficult and important task of “pulling back the curtain” to determine how the federal class action system actually works. Gelbach & Hensler’s paper investigates critical questions that includeg how many class action filings there are, and how key events in the life cycle of this legal institution (e.g., class certification) unfold.

Professors Kalajdzic, Murphy, Tzankova, & Gomez extend Professor Hensler’s important work onclass actions and legal transplantation by examining in detail how standing to sue in connection with “representative litigation” is determined in five different jurisdictions — Canada, Australia, the Netherlands, Spain, and Germany.

Professor MacCoun recounts the pioneering role that Professor Hensler and the RAND Institute for Civil Justice played in bringing sound empirical data to the tort reform battles of the 1980s and 90s. MacCoun’s contribution highlights the safeguards Professor Hensler devised to minimize bias in empirical research. To this day, those safeguards represent best practices in the field.

Professor Resnik’s contribution recounts personal history: how, serendipitously, when Resnik was teaching at USC in the 1980s, she came to meet Deborah Hensler who was working at Rand. The contribution outlines the enduring scholarly importance of their collaboration, which began with a Rand Institute study of how civil litigants perceive their own encounters with the legal system. Resnik celebrates the remarkable way in which Professor Hensler weaves together “stories and statistics” to illuminate both litigant experience and litigation-system structure. Through her tribute to Professor Hensler’s contributions, Resnik also offers an adroit review of almost sixty years of aggregate litigation and the social science and politics of appraising that litigation. Resnik describes how Hensler’s scholarship came to intersect with, and to vindicate, the normatively inclined “procedural justice” school of thought which was emerging around the same time.

Judge Rosenthal explains why Hensler’s work has been “so valuable for those of us on the bench.” Hensler brings facts, data, and remarkable lucidity about the workings of the legal system, to a landscape dominated by polemic and ideology. Not incidentally, Judge Rosenthal underscores just how impressive Hensler’s grasp of our legal system and its processes are. Many social scientists have a relatively amateurish understanding of law as lawyers know it. They hope to understand the legal system “from the outside,” without its norms and procedures. Professor Hensler, by contrast, has always been concerned with the internal point of view of the legal system’s officials and subjects. She is deeply attentive to both the experiences of laypeople who encounter the system as they struggle to obtain remedies for injuries they have suffered, and also of legal experts who operate the system.

This attentiveness to participant perspectives is a theme of Professor Henler’s own illuminating autobiographical reflection on her scholarly aspirations. She emphasizes that her research has been “question-driven,” not “data-driven,” and stresses her deep interest in qualitative methods, qualitative scholarship, and even the humanistic writings of historians.

This attentiveness to law as it manifests itself in lived human experience is fundamental to Hensler’s enduring and exemplary scholarly achievements. Professor Hensler has illuminated “how the law operates to shape ordinary people’s lives.” Her work is masterful social science, but it is also more. The qualitative, question-driven social science that she practices helps us to understand how law appears to those who participate in, and are subject to, its operation. By illuminating the lived experience of law, Professor Hensler’s exemplary social science scholarship realizes one of the deepest aspirations of the humanities as well.

For the outstanding Stanford Conference on which this Journal is based, we thank Professor Nora Engstrom, Ernest W. Mc Farland Professor of Law; Lucy Ricca, Executive Director of the Deborah L. Rhode Center on the Legal Profession; and Rhode Center Civil Justice Fellows Ayelet Sela and Brianne Holland-Sterger. Stanford Law School’s commitment to scholarship in the field of civil justice has been unmatched.

For tireless and thoughtful work editing Journal articles for this edition, we thank Alex Wu of the Sandra Day O’Connor Law School at Arizona State University. As always, we thank the Journal of Tort Law team Nathan Gamache, Agata Jozefowska, Manopriya Mariadass, Kumaran Rengaswamy and our Editorial Board: Mark A. Geistfeld, John C.P. Goldberg, Ronen Perry, Christopher Robinette, Catherine M. Sharkey, John Witt and Benjamin Zipursky.

It has been both a challenge, and an honor, to help create an edition of the Journal that aspires to the impossibly high standard of doing honor to the work of Deborah Helsler.