Public Choice Theory, Interest Groups, and Tort Reform
Max H. DeLeon | 2012 U. Ill. L. Rev. 1787
The scope of the civil justice system has generated significant interest in recent U.S. history, in large part through the debate surrounding “tort reform.” Most of the relevant political and academic discussion thus far has focused on whether the tort system should be comparatively large or small. Advocates for tort reform argue that it should be small, because a large system is too costly for consumers and abusive to defendants. This Note seeks to add to the discussion by evaluating, not whether one group’s position on tort law is better, but whether one group’s influence on tort law is stronger.
The academic literature evaluating interest groups through the lens of economic theory suggests that when private factions have a direct pecuniary interest in shaping the law through litigation and the political process, the effort they expend to do so will be relative to their ability to overcome problems inherent in collective action. Further, the extent to which their efforts are rewarded will depend on how strategically positioned they are to influence courts and policy makers. This Note builds on the public choice literature analyzing those groups with a direct financial interest in expanding or reducing the scope of tort law. Much of the existing scholarship concludes that groups with an interest in expansion have an advantage in their ability to overcome collective action problems and thus are in a superior strategic position to influence tort law. This Note argues that such conclusions are based on faulty assumptions. If anything, public choice and interest group theory suggest that groups with an interest in reducing the scope of the tort system through tort reform have an advantage over their opponents.