The Case for a National Civil Justice Survey

My Cornell colleague, Ted Eisenberg, recently circulated a paper that persuasively argues for instituting a national civil justice survey (modeled after the National Crime Victimization Survey).  Ted's paper, The Need for a National Civil Justice Survey of Incidence and Claiming Behavior, summarizes the existing leading sources of data along with their various limitations.  The abstract follows.

"Civil justice issues play a prominent role in society. Family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behavior are part of the fabric of daily life. Policymakers and interest groups regularly debate and assess whether civil problems are best resolved by legislative action, agency action, litigation, alternative dispute resolution, other methods, or some combinations of actions. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice issues. This paper explores the desirability of, and issues related to, creating a national civil justice survey, analogous to the National Crime Victimization Survey."

Comments

[Tracy Lightcap]

Well, it is just about high time for that!

I like the design, although I would think that a survey of households might not be enough. Many of the questions involving civil justice policy concern businesses and professional offices. A survey that would tell us enough might have to include them too. A design using disproportionate sampling to catch a larger share of the high end of income earners might take care of that.

There's also what I call the "civil plea bargain problem". My wife is a management labor attorney. When she can whittle down the grounds for complaint and the size of suing classes so that the actual liability of her clients is reduced considerably, she often settles. This is referred to in our household as a "win", in much the same way that pleading down a 1st degree murder charge to manslaughter is for a criminal defense lawyer. Yet this would show up as a win for the plaintiffs in the dockets. How would this aspect of the system - every bit as important as on the criminal side, but much less talked up - be caught by a NCJS?

Well, there isn't much possibility of such a major new statistical effort (the results of which would NOT be welcomed by many interested parties) in the present fiscal climate. Still, it's good to see the idea being vetted. No question it would help at all levels.