Volume 17, Issue 2 - Special Issue title: Complex and International Litigation and Empirical Litigation Studies: Festschrift in Honor of Professor Deborah Hensler

Professors Ellen Bublick and Gregory Keating, Co-Editors of the Journal of Tort Law, introduce  Complex and International Litigation and Empirical Litigation Studies , a Festschrift in Honor of Professor Deborah Hensler, Judge John W. Ford Professor of Dispute Resolution at Stanford Law School.

In this essay to honor Deborah Hensler, we summarize an update to her classic study on claiming behavior and explore its policy implications. More specifically, we empirically document how those with significant medical conditions utilize the civil liability system, particularly in terms of making claims against others, seeking the advice of legal professionals, and initiating litigation. We find that few who are injured or fall ill believe that another party is responsible, and even among that group, relatively few seek compensation against that party. Still fewer contact attorneys or file a lawsuit. Our findings have implications for the social welfare system, the role of tort law, and the way the selection of cases shapes the common-law. In particular, the significant non-random winnowing of the universe of harms litigated we observe can result in normatively undesirable path-dependence in the evolution of the common law.

Practitioners, judges, and scholars have long debated numerous aspects of class litigation policy, with many disagreements involving competing empirical assertions. Astonishingly, given the long-running debate about the virtues and vices of class actions, we lack basic information about the federal class action caseload that would allow us to assess these claims, largely because the federal judiciary does not report even the most basic facts about class action litigation. Despite the critical role of class certification in the design of Rule 23’s scheme for class litigation, for example, we do not know how many cases have had class certification motions filed – not over time, not by the nature of suit, and not even in any particular year. What evidence we do have about class actions is fragmented in one way or another, e.g., involving only securities cases (which, unlike other cases, are governed in part by the PSLRA), or involving only cases with proposed settlements, as discussed in Fitzpatrick (2024). The lack of basic information about the federal class action universe facilitates a policy reform debate that enables contending parties to endlessly argue about the virtues and vices of the class action procedure without needing to account for how the procedure works in practice. The debate takes place in public while the class action process itself proceeds behind a curtain of ignorance. The goal of this paper is to start pulling back that curtain by reporting some basic information about federal class action filings and key events in the class action litigation process. Using docket entry text for cases filed between January 1, 2005, and December 31, 2014, we report some basic statistics regarding (1) how many putative class action cases there are, (2) how many have motions for class certification filed, (3) how many have an order on class certification, and (4) the timing of these events. We focus on certification because it is the key event in the life of class litigation: without it, the outcome of the litigation cannot bind the proposed class. Not surprisingly then, claims about certification rates have been central to policy debate about class actions. But except in limited circumstances, these claims have not previously been subject to rigorous analysis. Our approach is based on using a fine-tuned large language model to classify docket entries, as other recent work has done. We believe this will be a fruitful approach for future work in the area.

Deborah R. Hensler has long championed the comparative study of civil procedure in a way that considers the interplay between legal rules, redress mechanisms, legal institutions and the societies where they operate. More importantly, this approach has also revealed the intended and unintended consequences of legal transplantation, and illuminated the difference between the law in the books and the law in action. As Professor Hensler recently and succinctly wrote, “procedures that seem on the surface to be the same or very similar may in practice operate differently as they intersect with other aspects of the litigation regime – rules, cultural expectations, political contexts – in which they are inserted.” In a multi-year book project she led almost a decade ago, Hensler and her colleagues identified the cultural, economic and political forces that impact how a single procedural device – representative litigation – operates in any given jurisdiction. The studies that comprised the project were grounded in empirical data obtained through several research strategies, specially the case study method. National jurisdictions or specific cases within those jurisdictions were used as units of analysis, and as a basis for a broader cross-country comparison that helped identify points of convergence and also key differences.

Engaging with Deborah Hensler’s career provides a window into the transformation of tort litigation, of courts, of legal empiricism, and of legal studies. In the 1980s, I joined a project of the Institute of Civil Justice of RAND to do an innovative study focused on civil litigants that elicited information directly from them, as contrasted with lawyers or lab-based simulations. The litigants we studied had favorable views of trial; they described themselves as able to participate, to be heard, and to have received respectful treatment. Trial and arbitration ranked more favorably than judge-run settlement conferences and lawyer-lawyer bilateral negotiations, which excluded the people whose cases were at issue. Reflecting back, this study—part of what was then a growing procedural justice literature—documents a world of litigation that has since become unusual. The lawsuits we studied involved torts; litigants sought relatively modest sums and proceeded case by case with lawyers who represented them. Today’s litigation world looks radically different. Torts have declined as a percentage of federal and state court caseloads, aggregation has gained saliency as a major mode of proceeding for tort claims that do enter the system, and the courts are awash with lawyerless litigants. This essay maps those changes, the debates about aggregation of torts in class actions, the impact of bankruptcies involving defendants in asbestos and other product liability litigation, the rise of multi-district litigation, corporate defendants’ search for “global peace,” and the turn in courts to consider how gender, race, and ethnicity affect their processes and substantive law. Deborah Hensler reminds us to aggregate and to disaggregate, to think about the ideas underlying calls for a “day in court” and “due process” and analyze the tradeoffs, to find ways to learn from participants in litigation systems about their forms and functions, and to probe outcomes so as to assess what remedies and money flows to whom, and why.