Confidentiality, Transparency, and the U.S. Civil Justice System

The lawsuit is the cornerstone of the civil justice system in America, and an open court the foundation of American jurisprudence. In a public setting, we resolve disputes, determine liability, and compensate injuries. In recent decades, however, more civil disputes have been resolved out of court and the outcomes have been kept secret. Fewer than 5 percent of the tens of millions of injury claims annually are actually resolved through a public trial with a jury, and the vast majority are settled out of court or through private forums, such as mediation or arbitration, with undisclosed terms. Some argue that the confidentiality of the system keeps it working efficiently and fairly; others argue that the public is being denied information about hazards that may cause harm and that a public system with no data lacks oversight. This collection of essays by leading legal scholars is the first book to approach the issue in a multidisciplinary, nonpartisan, and empirical manner. The essays provide empirical analyses and case studies of the impact of greater disclosure on various aspects of the system, ranging from settlement values to fraud, and propose several novel prescriptions for reform. With special attention to the emergence of modern mass litigation, the authors identify a number of benefits to increasing access to information, including decreased fraud, improved public understanding and confidence in the system, and lower transactions costs. The authors make policy recommendations--such as expanding access to existing databases and using technology to create new databases--that increase transparency while protecting the need for privacy.

INTRODUCTION. PART I. STUDIES USING EXISTING DATABASES OR NOVEL DATA COLLECTION. CHAPTER 1. Secrecy, Settlements and Medical Malpractice Litigation (Eric Helland aamp, Gia Lee). CHAPTER 2. Shedding Light on Outcomes in Class Actions (Nicholas M. Pace aamp, William Rubenstein). CHAPTER 3. Expectations, Outcomes and Fairness: Lessons from the Civil Justice Reform Act Evaluation (Stephen Carroll aamp, Joseph W. Doherty). PART II: CASE STUDIES. CHAPTER 4. Transparency in the Victim Compensation Fund (Jeremiah Goulka aamp, Robert Reville). CHAPTER 5. Understanding Mass Tort Defendant Incentives for Confidential Settlements: Lessons from Bayer's Cerivastatin Litigation Strategy (James Anderson). CHAPTER 6. Transparency and Expert Evidence in Mass Torts: Insight from Silica Litigation (Lloyd Dixon aamp, Stephen Carroll). PART III: REFORM PROPOSALS. CHAPTER 7. Transparency for Civil Settlements: NASDAQ for Lawsuits? (Stephen Yeazell). CHAPTER 8. The Future of Court System Transparency (Lynn M. LoPucki). CHAPTER 9. Transparency Through Insurance: Mandates Dominate Discretion (Tom Baker). REFERENCES.

Joseph W. Doherty is the Director of the Empirical Research Group (ERG) at the UCLA School of Law and the co-Director of the UCLA-RAND Center for Law and Public Policy. He teaches Empirical Legal Studies at UCLA Law. He has co-authored research on bankruptcy with Lynn LoPucki, on the living wage with Richard Sander, on negotiation strategy with Russell Korobkin, on international criminal law with Máximo Langer and Richard Steinberg, on employment discrimination with Gary Blasi, and on administrative law with Jody Freeman. Prof. Doherty has also published articles on voting behaviour and campaign finance. Robert Reville is a Senior Economist at RAND whose research focuses on insurance and compensation for accidents and injuries. From 2002 to 2008, he served as director of the RAND Institute for Civil Justice (ICJ). During his tenure as director, ICJ started new research streams on corporate ethics and governance and on entrepreneurship. In addition, Dr. Reville founded and co-directed the RAND Center for Terrorism Risk Management Policy, and research from this center was acknowledged as critical in the Congressional decision to renew the Terrorism Risk Insurance Act in 2005 and 2007. He has led a series of studies at RAND on workplace injury compensation policy and the impact of disability on employment, and several recommendations from his work were adopted in reform legislation in California in 2004. Laura Zakaras is the Director of the Research Communications Group at the RAND Corporation, a group that consists of 20 communications analysts who work with large, multidisciplinary research teams to help them communicate effectively with policymakers through reports, policy briefs, briefings, and many other products. She is also the Communications Director for the Institute for Civil Justice and the Financial Literacy Center. In that role, she works to expand the reach of RAND research by designing dissemination and outreach strategies for different audiences, devel