Bureaucratic Legalism, American Style: Private Bureaucratic Legalism and the Governance of the Tort System

Abstract

The thesis of this Article is that while the modern plaintiffs' bar serves a crucial regulatory function in American public policy, the way we regulate the regulators warrants attention and perhaps even revision. The modern plaintiffs' bar began in what its progenitors described as a movement to defend the rule of law against the administrative and bureaucratic incursions of the twentieth-century state. The chief villain in the early years of the plaintiffs' bar was the bureaucratic state functionary. Vested with substantial discretionary authority and subject only loosely—if at all—to the traditions and constraints of law, the bureaucrat seemed to threaten the rule of law traditions of Anglo-American governance. Leading spokesmen of the plaintiffs' bar contended that the bureaucrat was akin to "a little dictator. " And yet today, the American plaintiffs' tort bar has a rule of law problem of its own. In many areas of American personal injury practice, tort law has given rise to a far-flung, decentralized, and often virtually invisible private bureaucracy. In that vast administrative system, the plaintiff's representative has come to enjoy some of the same discretionary authority that plaintiffs' lawyers criticized in public bureaucrats of the welfare state. In some important respects, the plaintiffs' bar is remarkably unconstrained. Plaintiffs' personal injury lawyers typically work for relatively powerless clients, under ineffective ethical canons, and without meaningful monitoring by bar associations or other professional organizations. Moreover, trial lawyers operate in a market for legal services that is, at best, relatively disorganized and, at worst, perversely organized to serve the bar's interests rather than the interests of personal injury victims.