Assessing the Impact of State Judicial Structures on Citizen Litigiousness

Article excerpt

Abstract

Some researchers argue over the existence of a "litigation explosion," while others seek to understand the causes of variation in citizen legal mobilization and rates of litigation among states. Existing studies have provided important insight into citizens' propensity to invoke the state courts to settle disputes; however, there remain unresolved questions concerning state litigation rates. The authors argue that the structural aspects of state judicial systems, specifically the professionalism of the courts and method of judicial selection, have important implications for litigiousness. They further suggest that the effects of these institutional structural characteristics are conditioned on the political environment of the state in which they operate. The authors consider tort litigation rates in ten states over twenty years to assess the proposition that these institutional structural characteristics of state court systems affect state citizen legal mobilization, expressed as litigation rates.

Keywords

public law, courts, state politics, policy

Observers of political and legal culture continue to ponder questions about the litigiousness of contemporary American society. Whether it is referred to as the "adversary society," "adversarial legalism," or the "litigation explosion," the general phenomenon described in the literature involves concerns that Americans are increasingly using courts to resolve disputes and the growing perception that the nation is awash in frivolous lawsuits (e.g., Rhode 2004; Galanter 2002; Kagan 2002; Cross 1992; Sarat 1985). While the term litigation explosion is typically used in the pejorative, some scholars argue that an increase in litigiousness must be weighed against the social utility of resultant consumer protections and advances in civil rights.

Our study explores the role that state legal institutions play in explaining state variation in legal mobilization. We believe that differences in the elemental structure of the judicial system affect the degree to which citizens invoke the legal system for redress. In this study, we investigate the influence of two important structural aspects of state legal institutions. First, following a well-developed hypothesis in the literature, we posit that states' methods of selecting judges influence the degree to which citizens are disposed to using courts for the resolution of problems and grievances. Second, we argue that the degree to which a state's court system is professionalized may either impede or promote citizen legal mobilization. Finally, we posit that the effects of these institutional structural characteristics do not work independently but are conditioned on the ideology of the environment in which they operate.

Our study proceeds as follows. In the next section, we set forth our approach to this research question and develop our primary hypothesis that state court institutional characteristics are linked to citizen legal mobilization. We further posit that this relationship turns on the political environment in which the state operates. Following that, we describe our data, model specification, and discuss the results of the study. We conclude by offering observations on the implications of this study for understanding state institutional structure and its effects on legal mobilization.

Litigation and the Individual-level Mobilization of the Law

How do issues gain attention? Agenda setting, the process by which issues gain political attention, is crucial for understanding the particular interests that benefit or lose in the political system (Bachrach and Baratz 1962; Cobb and Elder 1971). A judicial research tradition germane to the current study highlights the importance of the legal context in shaping cues to litigants and potential litigants and how these shape the mobilization of cases going to court.1 Donald Black (1973) famously admonished us to remember that courts depend on citizen initiation to function. …