An Oil Strike in Hell: Contemporary Legends About the Civil Justice System

The wide stream of disillusionment with the civil justice system that emerged in the
1970s does not really have a name, so let me supply one. I call it the “jaundiced
view.” By this I refer to a set of beliefs and prescriptions about the legal system
based on the perception that people are suing each other indiscriminately about the
most frivolous matters, and juries are capriciously awarding immense sums to
undeserving claimants. The system is arbitrary, unpredictable, berserk, demented;
it has spun out of control. The resulting “litigation explosion” is unraveling the
social fabric and undermining the economy.

The current consternation about law reflects an intersection–better a
collision–between the two master trends of American legal life in the twentieth
century. The first of these we might call the expansion of remedy. There has been
a progressive extension of the scope and availability of legal protections and
remedies for more of life’s troubles and problems to more and more people,
including those who earlier were largely excluded from it–injured workers and
consumers, blacks, women, the disabled, prisoners, and so on. This enlargement of
remedy has been accompanied by (or some might say accomplished by) a cultural
shift: the expansion and elaboration of the notion of rights. Although particular
components of this shift may be contested, the general direction remains clear: law
has become the master wall-to-wall orderer of our social life. Reliance on the legal
system and expectations of what it can accomplish have risen, and broad sections
of the public believe that it will secure them remedy and vindication in many of
life’s adversities.