Comments on: The Public and Private Goods Produced By Litigation http://www.concurringopinions.com/archives/2009/08/the-public-and-private-goods-produced-by-litigation.html The Law, the Universe, and Everything Tue, 14 Feb 2012 14:44:18 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: JP http://www.concurringopinions.com/archives/2009/08/the-public-and-private-goods-produced-by-litigation.html/comment-page-1#comment-65110 JP Sun, 23 Aug 2009 21:27:46 +0000 http://www.concurringopinions.com/?p=19343#comment-65110 I think your main premise is wrong. I don't believe there is any evidence that litigation reform would result in fewer public decisions. I assume your logic is simply that fewer cases = fewer published opinions, but I don't see any reason why that would be the case. Litigation reform ideally would target the broad swath of cases that ultimately settle for nuisance value (i.e., cost-of-defense). Those cases typically don't result in many published opinions. And many of the opinions that do result are procedural decisions about discovery, which is the plaintiffs' primary offensive weapon in such cases. Procedural opinions have little public benefit. Indeed, I think it is at least as likely that a judiciary less burdened with frivolous cases and with less need to act as the discovery referee would able to publish more opinions on substantive law. Finally, I don't understand your point about the private benefit. If communication between companies is good, but prohibited by regulation, doesn't that just mean the regulatory regime is bad? Or if communication between companies is bad, but enabled through litigation (very expensively, to the parties and the public) isn't this a bad feature of litigation? I think your main premise is wrong. I don’t believe there is any evidence that litigation reform would result in fewer public decisions. I assume your logic is simply that fewer cases = fewer published opinions, but I don’t see any reason why that would be the case. Litigation reform ideally would target the broad swath of cases that ultimately settle for nuisance value (i.e., cost-of-defense). Those cases typically don’t result in many published opinions. And many of the opinions that do result are procedural decisions about discovery, which is the plaintiffs’ primary offensive weapon in such cases. Procedural opinions have little public benefit.
Indeed, I think it is at least as likely that a judiciary less burdened with frivolous cases and with less need to act as the discovery referee would able to publish more opinions on substantive law.

Finally, I don’t understand your point about the private benefit. If communication between companies is good, but prohibited by regulation, doesn’t that just mean the regulatory regime is bad? Or if communication between companies is bad, but enabled through litigation (very expensively, to the parties and the public) isn’t this a bad feature of litigation?

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