The mission of the Manhattan Institute is to develop and disseminate new ideas that foster greater economic choice and individual responsibility. |
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 About the Center for Legal Policy The Center for Legal Policy's fellows have written multiple books, and they have published numerous articles in newspapers, magazines, and academic journals. The Center's fellows also make frequent radio, television, and public appearances and have testified before both houses of Congress. The Center for Legal Policy publishes reports and conference transcripts, and the Center and its fellows manage these websites valuable to legal reform:
The Center for Legal Policy hosts regular forums and conferences in New York City and around the country. If you are interested in attending a future forum, please email your contact information to Jim Copland. The Litigation IndustryThe Center for Legal Policy is committed to chronicling how trial attorneys in the United States collectively behave just like the biggest of businesses:
generating cash from traditional profit centers (like asbestos), exploring potential growth markets (like suits against lead paint manufacturers), and developing
new products (like suits against the fast-food industry). Plaintiffs' lawyers aggressively pursue clients through advertisements on television and radio, in newspapers
and on the internet. Through tort litigation, the plaintiffs' bar in America, which the CLP has dubbed Trial Lawyers, Inc., grosses almost $50 billion per year—significantly more than the annual revenues Microsoft or Intel, and more than
twice the global sales of Coca-Cola. The litigation industry in turn spends its earnings to block legal reform through one of the most powerful public relations
and government relations lobbies in America. Since 1990, trial lawyers have donated over a half-billion dollars to federal political campaigns alone—a
figure far higher than any other industry group. Regulation through LitigationAs every beginning student of government is aware, America's constitution and those of each of the fifty states divide governmental authority among three coequal
branches: the legislative, which makes laws; the executive, which enforces laws; and the judiciary, which interprets laws. That the elected branches of government
are responsible for enacting policy makes sense, because elected representatives can easily be replaced by a dissatisfied populace. As judges have loosened their
strictures on the scope of litigation, however, they have increasingly enabled attorneys to dictate policy. Legislators themselves are not blameless in this phenomenon,
as they have often ceded power willingly to "private attorneys general" to enforce laws, rather than making difficult policy decisions for which they could be held
accountable. In many instances, too, state attorneys general or local officials have worked with allied plaintiffs' lawyers to pursue suits or prosecutions that effectively
dictate national policy, an inversion of America's federal scheme. Whether or not one agrees with the political objectives being pursued through litigation, one
has to be fearful of the democratic implications of what Manhattan Institute Senior Fellow Walter Olson calls
"The Rule of Lawyers," and the Center for Legal Policy is devoted to documenting
and analyzing this phenomenon. Class ActionsClass actions are designed to allow legal redress for a group of individuals,
each of whom has been similarly harmed. The principle underlying class
actions is that many harms are large but broadly dispersed, such that
each person harmed may not have sufficient injury to file a claim, given
the legal process's high administrative costs. The class action device
has inherent problems, however. To begin with, it is often not the case
that claimants are, in actuality, "similarly situated." Various factual
differences that might lead to disparate outcomes in individually litigated
claims are regularly glossed over when such claims are joined into a class.
Even when class members' injuries are alike, there is a significant agency
problem in class action litigation; since, by definition, individual claims
are small for class litigation, no individual plaintiff typically has
sufficient interest to monitor or control the class attorneys. As such,
and given the enormous sums available when attorneys aggregate thousands
or millions of claims, the class action device has become a favored form
of legal attack: class action filings increased 300 percent in federal
courts and 1,000 percent in state courts during the 1990s. The Center
for Legal Policy has been a leader in analyzing class action abuses and
developing solutions; our empirical work helped form the basis for Congress's
landmark 2005 Class Action Fairness Act. Employment LawGetting hired, promoted, and fired used to be relatively simple concepts: workers who showed signs of promise got hired or promoted; those who failed to impress or
execute were passed by or replaced. That was before employment litigation. In today's environment, getting fired becomes "wrongful termination," and a candid project
evaluation becomes "workplace defamation." Employers are expected to police their workers' discourse—or face a lawsuit over a "hostile work environment."
Moreover, a lawsuit by one disgruntled employee can change the workings of an entire industry: hiring, firing, wage-setting, and almost every other decision
traditionally left to the free market. The capriciousness of the employment litigation landscape gives employers little clear guidance: some employers have reacted to
fears of lawsuits by documenting personnel decisions obsessively, while others instead put as little on paper as they can get away with. What is clear is that employment
law—what Manhattan Institute Senior Fellow Walter Olson calls "The
Excuse Factory"—is stifling economic opportunities, often for the classes of individuals the law is designed to protect. Olson and the Center for Legal Policy will
continue to show the shortfalls of this area of the American legal landscape. Medicine and the LawAmerica's medical system today has more capability to save and improve lives than at any prior point in human history. But far too many individuals
find health care insurance unaffordable, valuable drugs and medical devices
that exist overseas are unavailable in the United States, many essential
vaccines are in short supply, and doctors in certain vital specialties
are scarce in many parts of the country. The Center for Legal Policy strongly
believes that the out-of-control litigation system in the United States
plays a major part in the problems underlying American health care. And
as Manhattan Institute Senior Fellow Peter Huber argued almost two decades
ago in his seminal book Liability,
many of the most pernicious effects lawsuits have on our health and safety
are largely unobservable: the potential cure or product that would prolong
or enhance life but never gets out of the research lab due to the fear
of being sued. Despite scientists' best efforts, the side-effect-free
drug has yet to be discovered, and there is still no such thing as a risk-free
surgery. The Center for Legal Policy will continue to examine how litigation—from
mass tort suits over pharmaceuticals to medical malpractice suits against
physicians—adversely affect Americans' health. Products LiabilityIn the twentieth century, as far more goods entered the market with more
complex means of production and distribution, American law gradually changed
to permit suits against companies that made defective products if the
product failed to meet the manufacturer's design standards. Although the
initial opening of products liability made sense, in the late 1960s courts
began allowing juries to second-guess the manufacturers' designs themselves
and to hold manufacturers liable for alternative designs that might have
been safer. Eventually and inevitably, products liability law evolved
such that jurors now regularly determine that manufacturers could have
developed a safer product, even when such alternatives were rejected in
complicated, protracted regulatory processes by federal agencies. After
the Supreme Court determined in 1977 that lawyers have a constitutional
right to advertise—and after attorneys made millions and ultimately
billions of dollars suing thousands of companies over the harmful effects
of asbestos—the floodgates were fully open. Today, plaintiffs regularly
win in court even when they cannot show that they were injured at all,
that their injury was caused by the product, or that the product's manufacturer
was in any way negligent in making the product. The Center for Legal Policy
has long studied the problems with modern American products liability
law and continues to advance thoughtful reforms. Judicial SelectionFair, honest judges are required to enforce the law. Although self-interested
factions will naturally try to attempt to influence legislators—hopefully
neutralizing each other, as Madison suggests in The Federalist Papers—when
judges become susceptible to outside influence, the rule of law is in
serious jeopardy. Judges need to be neutral, impartial arbiters of the
law insulated from political winds and outside pressures. Unfortunately,
most tort cases are tried in state courts before elected judges. Anyone
whose job rests in the hands of local special interests will naturally
cater to those interests, and empirical research has shown that historically
states with partisan judicial election systems tend to have higher tort
awards in cases in which in-state plaintiffs sue out-of-state defendants.
Because trial attorneys have the most focused, cognizable interest in
the outcome of judicial races, they have historically given the majority
of campaign contributions in these elections. More recently, national
business interests have pooled their resources and won several hotly contested
races, some with campaign expenditures in the millions of dollars. The
Center for Legal Policy continues to research and write on the problems
of judicial election and selection. Reform ProposalsThe Center for Legal Policy's mission is to do more than just point out
shortcomings in American law: the Center aims to solve those problems
by putting forth real, effective proposals for reform. Former Manhattan Institute's Senior Fellow Walter Olson has been a long-time advocate of moving the
United States toward a "loser
pays" system in which the losing side in litigation pays the winners'
legal costs. Olson developed his argument carefully in his first book,
The
Litigation Explosion. Manhattan Institute Senior Fellow Peter Huber
has devoted much of his writing to refining how judges accept or reject
scientific evidence
in the courts. Beginning more than a decade ago, the Manhattan Institute
has developed and advocated comprehensive proposals for reforming contingency
fees, the mechanism by which plaintiffs' lawyers are paid and thus
the economic incentive underlying litigation. More recently, the Center
for Legal Policy was at the forefront of advocating reforms of America's
class action system.
These are but a handful of the many reform ideas the Center for Legal
Policy has analyzed and suggested, and the Center will continue to look
for positive solutions to America's litigation crisis. RECENT ARTICLES: |
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