‘Supplying a Key Piece of the Tort-Decline Puzzle’

Alexandra D Lahav and Peter Siegelman, The Curious Incident of the Falling Win Rate: Individual vs System-Level Justification and the Rule of Law, 52 UC Davis Law Review 1371 (2019). In The Curious Incident of the Falling Win Rate, Alexandra Lahav and Peter Siegelman highlight a remarkable – but heretofore overlooked – fact: Between 1985 and 1995, the plaintiff win rate in adjudicated civil cases in federal courts fell precipitously, from 70% to 30%. In subsequent decades, although the plaintiff win rate has fluctuated, it has generally hovered at or below 40%, significantly off its 1985 peak (p 1371). From there, Lahav and Siegelman put their discovery in context and explore potential explanations for the observed trend. In this Jot, I’ll endeavor to explain why their Essay – on the face of it, not about the tort system – in fact, supplies an important piece of the tort-decline puzzle. Then, I’ll offer a fuller account of the Essay itself. Finally, I’ll share a few questions the paper stimulates … (more)

[Nora Freeman Engstrom, JOTWELL, 30 March]

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