Public Opinion and the Civil Justice System
Author: Stephen Daniels
What do people think of the civil justice system? This project seeks to answer that question against the backdrop of the politics of tort reform and the changes in the law that have resulted from the tort reform movement. Claims about public opinion have been used by pro-reform groups to argue for the existence of serious problems in the civil justice system and the need for substantial change, as well as to show public support for particular changes those groups favor. If there is a clear congruence between people’s views of the civil justice system and tort reform, tort reform may then be seen as a legitimate reflection of the popular will and as an example of public policy being shaped democratically. Tort reform would gain substantial legitimacy as a result. More specifically, this project seeks to determine whether the public opinion we see, and often respond to, with regard to the civil justice system is relatively intelligible over time and whether it exhibits patterns and changes consistent with the idea of tort reform as a reflection of the popular will. Three issues are key: whether public opinion changed in a negative direction; whether any such change preceded major public relations and political campaigns by pro-reform interest groups; and whether any independent changes in public opinion preceded enacted tort reform measures.
Relying on the pubic opinion archives kept by the Roper Center at the University of Connecticut and by the Inter-University Consortium for Political and Social Research, data collection is complete. Information has been collected on over 1600 individual survey questions dealing with the civil justice system that represent 658 different surveys done between 1938 and 2006. Special emphasis is being given to public opinion regarding medical malpractice and full data sets have been obtained for 33 surveys (done between 1982 and 2005) that touch on medical malpractice and these data sets will allow for more sophisticated analyses. Along with the opinion survey data, data from an alternative source on public views on the civil justice system have been collected. Information has been collected on 41 state-wide ballot measures (involving 16 states) between 1984 and 2005, in which voters were asked to pass legislation or amend a state constitution dealing with civil justice reform. For 14 of those 41 ballot measures (involving the states of California, Florida, and Michigan) county-level voting and demographic data have also been collected, which will allow for more sophisticated analyses. Information has also been collected on tort reform measures passed by state legislatures from 1970 to 2005. Data analysis is ongoing with some of the results being used in the book manuscript now being prepared for the Texas plaintiffs’ lawyers’ project.
Preliminary analysis shows that public opinion did become more negative starting in the middle 1980s, but then began to moderate in the late 1990s. Preliminary analysis also indicates that the changes in public opinion do not appear to have preceded pro-reform interest group campaigns and that the connection between changes in opinion and legislative changes in the law are problematic. Most recently, despite a moderation in public opinion, state legislative activity with regard to tort reform has increased as has the number of state ballot initiatives and referenda. Interestingly, of the thirteen measures on state ballots in 2004-05 that would limit access, rights, or damages, only four passed.