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For thirty years, the Manhattan Institute has argued that America's litigation system reduces innovation and investment, lowers safety and well-being, and erodes the risk-taking and personal responsibility essential to our free society. The Institute's Center for Legal Policy aims to communicate thoughtful ideas on civil justice reform to real decision-makers. Read more about CLP topics...

 
RECENT COMMENTARY   LATEST CLP REPORTS   MORE FROM CLP
Playing Politics With Pensions James R. Copland, Crain's New York, 09-07-14

SEC Needs To Rethink Its Rules On Proxy Advisory Firms James R. Copland, Washington Examiner, 07-25-14

Supreme Court Leaves Shareholders Vulnerable To Legal Shakedowns James R. Copland, Washington Examiner, 06-27-14

Lawyers Descend On Delaware To Kill Shareholder 'Tax' Relief James R. Copland, Investor's Business Daily, 06-18-14

N.C. Putting Too Many Crimes On The Books James R. Copland, Isaac Gorodetski, Greensboro News & Record, 05-18-14

Political Speech Triumphs in McCutcheon Decision James R. Copland, National Law Journal, 04-02-14

The U.K.'s New (and Improved) Deferred-Prosecution Agreements James R. Copland, Isaac Gorodetski, National Law Journal, 03-03-14

Ohio Legislature On Notice Isaac Gorodetski, The Cincinnati Enquirer, 02-04-14

 

Overcriminalizing The Old North State - A Primer and Possible Reforms for North Carolina
by James Copland and Isaac Gorodetski
May 2014

Companies Fight Back Against Chevedden: Unions and Social Investors Ramp Up Push on Corporate Political Spending
by James Copland
March 2014

The Shadow Lengthens: The Continuing Threat of Regulation by Prosecution
by James Copland and Isaac Gorodetski
February 2014

The FDA's Misguided Regulation of Stem-Cell Procedures: How Administrative Overreach Blocks Medical Innovation
by Richard Epstein
September 2013

Patents Trolls: A Report on the Litigation Industry ’s Intellectual Property Line of Business
August 2013

Political Spending, Say on Pay, and Other Key Issues to Watch in the 2013 Proxy Season
by James Copland
March 2013

The Foreign Corrupt Practices Act: Aggressive Enforcement and Lack of Judicial Review Create Uncertain Terrain for Businesses
by Paul F. Enzinna
January 2013

Off-Label, Not Off-Limits: The Fda Needs To Create a Safe Harbor For Off-Label Drug Use
by Paul Howard, James Copland
January 2013

Archive
 
Point Of Law

Treading the Regulatory Waters
By Hester Peirce, August 13, 2014

Proxy Monitor
NEW REPORT
Companies Fight Back Against Chevedden; Unions and Social Investors Ramp Up Push on Corporate Political Spending
by James Copland
Winter 2014
Trial Lawyers Inc.
Patents Trolls: A Report on the Litigation Industry’s Intellectual Property Line of Business
August 2013

 

         
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James R. Copland

Lester Brickman

Peter W. Huber

Ted Frank

Richard A. Epstein

 
 

James Copland and Laura Finn, the Web Editor at Board Member.com, discuss findings from "2013 Proxy Monitor Finding 5: More Proposals Introduced in 2013 but few Have Gained Majority Support."

James Copland and Ted Frank, discuss the significance of the Supreme Court's recent ruling in Comcast v. Behrend and its potential impact on class action litigation.

 

INQUIRIES

For more information on the center
please contact Jim Copland
(212) 599-7000
jcopland@manhattan-institute.org

Katherine Lazarski
(212) 599-7000
klazarski@manhattan-institute.org

 

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:

  • PointofLaw.com, a web magazine that brings together information and opinion on the U.S. litigation system, with daily postings by and regular discussions among top legal scholars; and
  • ProxyMonitor.org is the first and only public database to aggregate information on shareholder proposals and proxy voting in an easy-to-use format.
  • TrialLawyersInc.com, a series of reports and updates that shed light on the size, scope, and inner workings of America's lawsuit industry.

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 INDUSTRY

The 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.
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REGULATION THROUGH LITIGATION

As 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.
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CLASS ACTIONS

Class 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.
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EMPLOYMENT LAW

Getting 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.
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MEDICINE AND THE LAW

America'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.
Read more on this topic >>

PRODUCTS LIABILITY

In 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.
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JUDICIAL SELECTION

Fair, 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.
Read more on this topic >>

REFORM PROPOSALS

The 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.
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The Manhattan Institute, a 501(c)(3), is a think tank whose mission is to develop and disseminate new ideas
that foster greater economic choice and individual responsibility.

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