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    Confidentiality, Transparency, and the U. S. Civil Justice System

    ISBN-10: 0199914338
    ISBN-13: 9780199914333
    Edition: 2012
    Description: The lawsuit is the cornerstone of the civil justice system in America, and an open court the foundation of American jurisprudence. In a public setting, we resolve disputes, determine liability, and compensate injuries. In recent decades, however,  More...
    List price: $145.00
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    List Price: $145.00
    Copyright Year: 2012
    Publisher: Oxford University Press, Incorporated
    Publication Date: 4/24/2012
    Binding: Hardcover
    Pages: 258
    Size: 6.50" wide x 9.50" long x 0.75" tall
    Weight: 1.100

    The lawsuit is the cornerstone of the civil justice system in America, and an open court the foundation of American jurisprudence. In a public setting, we resolve disputes, determine liability, and compensate injuries. In recent decades, however, more civil disputes have been resolved out of court and the outcomes have been kept secret. Fewer than 5 percent of the tens of millions of injury claims annually are actually resolved through a public trial with a jury, and the vast majority are settled out of court or through private forums, such as mediation or arbitration, with undisclosed terms. Some argue that the confidentiality of the system keeps it working efficiently and fairly; others argue that the public is being denied information about hazards that may cause harm and that a public system with no data lacks oversight.This collection of essays by leading legal scholars is the first book to approach the issue in a multidisciplinary, nonpartisan, and empirical manner. The essays provide empirical analyses and case studies of the impact of greater disclosure on various aspects of the system, ranging from settlement values to fraud, and propose several novel prescriptions for reform. With special attention to the emergence of modern mass litigation, the authors identify a number of benefits to increasing access to information, including decreased fraud, improved public understanding and confidence in the system, and lower transactions costs. The authors make policy recommendations--such as expanding access to existing databases and using technology to create new databases--that increase transparency while protecting the need for privacy.

    Joseph W. Doherty is the Director of the Empirical Research Group (ERG) at the UCLA School of Law and the co-Director of the UCLA-RAND Center for Law and Public Policy. He teaches Empirical Legal Studies at UCLA Law. He has co-authored research on bankruptcy with Lynn LoPucki, on the living wage with Richard Sander, on negotiation strategy with Russell Korobkin, on international criminal law with M�ximo Langer and Richard Steinberg, on employment discrimination with Gary Blasi, and on administrative law with Jody Freeman. Prof. Doherty has also published articles on voting behaviour and campaign finance. He has a Ph.D. in political science from UCLA. Robert Reville is a Senior Economist at RAND whose research focuses on insurance and compensation for accidents and injuries. From 2002 to 2008, he served as director of the RAND Institute for Civil Justice (ICJ). During his tenure as director, ICJ started new research streams on corporate ethics and governance and on entrepreneurship. In addition, Dr. Reville founded and co-directed the RAND Center for Terrorism Risk Management Policy, and research from this center was acknowledged as critical in the Congressional decision to renew the Terrorism Risk Insurance Act in 2005 and 2007. He has led a series of studies at RAND on workplace injury compensation policy and the impact of disability on employment, and several recommendations from his work were adopted in reform legislation in California in 2004. He served on the Board of Scientific Counselors of the National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention until 2009. He received his Ph.D. in Economics from Brown University. Laura Zakaras is the Director of the Research Communications Group at the RAND Corporation, a group that consists of 20 communications analysts who work with large, multidisciplinary research teams to help them communicate effectively with policymakers through reports, policy briefs, briefings, and many other products. She is also the Communications Director for the Institute for Civil Justice and the Financial Literacy Center. In that role, she works to expand the reach of RAND research by designing dissemination and outreach strategies for different audiences, developing new research opportunities, reviewing research communications for their effectiveness, and writing policy briefs and brochures. Dr. Zakaras is also an arts researcher and has contributed to studies on building arts participation, the state of the performing arts, the benefits of the arts, and challenges facing state arts agencies. Before coming to RAND in 1989, she taught undergraduate and graduate courses in writing and literature at a number of universities in the United States and Europe, including the University of Texas at Austin; the University of Maryland, European Division; and Wurzburg University. She is currently a member of the faculty at the Pardee RAND Graduate School. She holds a Ph.D. in English from the University of Washington.

    List of Tables/Figures
    Declining Transparency
    Transparency and Mass Litigation
    Empirical Policy Analysis: A Fresh Perspective on Transparency
    Overview of Contents
    Conclusions and Policy Implications
    Studies Using Existing Databases or Novel Data Collection
    Secrecy, Settlements, and Medical Malpractice Litigation
    Dimensions of the Debate
    Information on Medical Malpractice Websites
    Description of the Malpractice Claim
    Study Approach and Data
    Study Findings
    Shedding Light on Outcomes in Class Actions
    Selected Empirical Studies on Claiming and Distribution Rates
    Selected Guidance for Judges Concerning Claiming
    What Can Outsiders Learn about Class Action Outcomes?
    Turning Up the Lamp
    Expectations, Outcomes, and Fairness: Lessons from the Civil Justice Reform Act Evaluation
    Theoretical Basis of the Analysis
    Background of the Civil Justice Reform Act
    Research Approach
    The Role of Attorneys
    Case Studies
    To the Extent that Participation is a Measure of Success: Transparency in the September 11th Victim Compensation Fund
    Transparency Theory
    Historical Context of the VCF
    The Goals of Targeted Transparency Adopted by the VCF
    Criticisms of VCF Transparency
    Understanding Mass Tort Defendant Incentives for Confidential Settlements: Lessons from Bayer�s Cerivastatin Litigation Strategy
    The Rise and Fall of Cerivastatin
    Game-Theoretic Models of Settlement Behavior Help Explain Bayer's Actions
    Understanding Why Limited Transparency Was in Bayer's Interest
    General Public Welfare Implications of Bayer's Strategy
    Conclusions and Policy Implications
    Transparency and Expert Evidence in Mass Torts: Insight from Silica Litigation
    Research Approach
    The Rise and Fall of Silica Litigation
    Strategies and Actions That Led to the Discovery of Fraud
    Using Transparency to Improve Outcomes in Future Litigation
    Reform Proposals
    Transparency for Civil Settlements: NASDAQ for Lawsuits?
    The Market in Civil Claims
    Proposed Solution
    The Future of Court System Transparency
    Technology's Challenge
    Transparency's Benefits
    Transparency's Costs
    The Political Challenge
    Transparency Through Insurance: Mandates Dominate Discretion
    Existing Approaches to Transparency Through Liability Insurance
    Liability Insurance and Transparency in Selected Civil Justice Areas
    Increasing Transparency Through Liability Insurance
    Conclusion: Limits on Transparency Through Liability Insurance
    Literature Cited
    Court Cases
    Statutes, Constitutions, and Rules

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