In Litigation Migrants, Charlotte Alexander (Georgia State) draws on data from FLSA litigation to help develop a theory of "litigation migration." Seeking to explain trends and changes in FLSA litigation over time (and its geographic movement over time) and exploiting a sample of FLSA cases from 2000-2016, the author finds that "personal injury lawyers have migrated across case types to take on FLSA cases, that lawyers have migrated across geographic boundaries to take on FLSA cases in other jurisdictions, and that both types of migration have influenced FLSA case filing numbers.” What the author argues that the "FLSA boom provides a remarkable opportunity to study what John Coffee has called 'entrepreneurial litigation,' in full flower. Indeed, the litigation migrants studied here have remade the wage and hour landscape, recovering many millions of dollars for workers and adding to the list of worries that cause employers to lose sleep." From the data the paper forward's an attorney-centric account. " Paraphrasing Hyman and Silver (“It’s the [plaintiffs’ lawyers’] incentives, stupid,”), Alexander's account emphasizes plaintiffs’ lawyers as a key litigation driver. Accordingly, "statutory or regulatory [efforts], such as tort reform, to shut down those lawyers’ income streams may result in a caseload shift, and a flight to more remunerative specialties. Admittedly, the tort reform variable in the two-part regression model described above produced no statistically significant results. However, because data availability limited the study period to 2000-2016, the model may have failed to capture the true impact of tort reform that occurred earlier, such as Florida’s set of reforms enacted in 1999.” The paper's abstract follows.
"Civil law is enforced primarily via private litigation. One characteristic of private enforcement is that litigation levels tend to cycle between booms and busts. This Article builds a theory for explaining this fluctuation, proposing that plaintiffs' attorneys can be understood as economic migrants. Just as workers cross borders to find jobs, lawyers 'move' across case types and jurisdictions to find profitable claims, and case-filing numbers increase as a result. Using the recent wage and hour litigation boom as a case study, this Article paints an empirical picture of attorney migration and its influence on case filing numbers. Drawing on these analyses, the Article concludes by considering the optimal litigation level within our private enforcement system.
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