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Pop Torts: a Brief History of the Frivolous Lawsuit Moral Panic
Introduction | |
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< | The idea of a “litigation crisis” in America has been largely accepted as fact for many years. Stories of greedy plaintiffs and sleazy lawyers bringing outlandish cases against businesses in capricious get-rich-quick schemes have long saturated popular media and popular opinion. Stoked by headlines like “Woman Sues TripAdvisor? ? After Falling off Runaway Camel,” “Red Bull Paying Out to Customers Who Thought Energy Drink Would Actually Give Them Wings,” and “Tennessee Man Sues Popeyes For Running Out of Chicken Sandwiches,” a moral panic about frivolous lawsuits has taken America by storm. More than just a national laughingstock, these fables have not only soured public opinion of lawyers and tort victims—they have also had an astounding impact on the landscape of tort litigation. Over the last few decades, advocates of “tort reform” have successfully realized much of their agenda—namely, making it harder for personal injury victims to file lawsuits, limiting available compensation and damages. For example, more than half of states have placed caps on damages malpractice cases (which in many cases have not been adjusted for inflation) and high-profile Supreme Court cases “have made structural litigation, class actions of all types, and individual civil rights claims more difficult.”
Strikingly, this picture of the American legal system bears little resemblance to reality. The vast majority of viral “pop torts” stories range from wildly misrepresented to completely fabricated, forming an anthology of legal urban legends that has more in common with Bloody Mary or razor blades in children’s Halloween candy than a genuine social issue deserving of attention. The existence of the phenomenon they supposedly exemplify is similarly dubious. Studies suggest that frivolous lawsuits are rarely filed and almost invariably fail at the hands of numerous built-in procedural safeguards. Further, the tort lawsuits that allegedly plague American courtrooms have actually decreased since the tort reform movement picked up steam in the 1980s. Nevertheless, the litigation crisis narrative continues to shape popular conceptions of the American civil legal system. This essay examines the origins of the tort reform movement and “frivolous lawsuit stories” and the key role of the media in their dissemination and acceptance by the public. | >
> | The idea of a “litigation crisis” in America has been largely accepted as fact for many years. Stories of greedy plaintiffs and sleazy lawyers bringing outlandish cases against businesses in capricious get-rich-quick schemes have long saturated popular media and popular opinion. Stoked by headlines like “Woman Sues TripAdvisor? After Falling off Runaway Camel,” “Red Bull Paying Out to Customers Who Thought Energy Drink Would Actually Give Them Wings,” and “Tennessee Man Sues Popeyes For Running Out of Chicken Sandwiches,” a moral panic about frivolous lawsuits has taken America by storm. More than just a national laughingstock, these fables have not only soured public opinion of lawyers and tort victims—they have also had an astounding impact on the landscape of tort litigation. Over the last few decades, advocates of “tort reform” have successfully realized much of their agenda—namely, making it harder for personal injury victims to file lawsuits, limiting available compensation and damages. For example, more than half of states have placed caps on damages malpractice cases (which in many cases have not been adjusted for inflation) and high-profile Supreme Court cases “have made structural litigation, class actions of all types, and individual civil rights claims more difficult.”
Strikingly, this picture of the American legal system bears little resemblance to reality. The vast majority of viral “pop torts” stories range from wildly misrepresented to completely fabricated, forming an anthology of legal urban legends that has more in common with Bloody Mary or razor blades in children’s Halloween candy than a genuine social issue deserving of attention. The existence of the phenomenon they supposedly exemplify is similarly dubious. Studies suggest that frivolous lawsuits are rarely filed and almost invariably fail at the hands of numerous built-in procedural safeguards. Further, the tort lawsuits that allegedly plague American courtrooms have actually decreased since the tort reform movement picked up steam in the 1980s. Nevertheless, the litigation crisis narrative continues to shape popular conceptions of the American civil legal system. This essay examines the origins of the tort reform movement and “frivolous lawsuit stories” and the key role of the media in their dissemination and acceptance by the public. | | | Origins of Tort Reform | |
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< | Driven by the postwar “legalist reformation” in America, New Deal era courts took initiative to “broaden remedies, increase accountability, lower procedural barriers, and generally increase access to litigation and redress for social injustices. This expansion of legal instruments and legal agency, and the optimism for rule-based solutions to perduring social problems spawned a counter-movement of ‘too much law’ characterized by an idiom of ‘litigation crisis’ and alarmist tort reform rhetorics.”
By the 1980s, this counter-movement had garnered support from sympathetic politicians and transformed into a “full-fledged machine to implement tort reform.” In 1986, hundreds of U.S. and foreign-based corporations formed the American Tort Reform Association (ATRA), a syndicate looking to overhaul civil liability laws at the state and national level. Despite being bankrolled almost exclusively by Fortune 500 companies with a direct financial stake in restricting lawsuits—primarily representatives of the tobacco, insurance, chemical, auto and pharmaceutical industries—ATRA has worked tirelessly to cultivate a public image as an advocate for "the average citizen looking for an end to the threat of being sued." To this end, they created “a number of astroturfed groups relying heavily on phrases like ‘lawsuit abuse’ to sell a narrative that ‘frivolous lawsuits’ were running rampant” such as “Citizens Against Lawsuit Abuse.” Numerous similar groups have since emerged, such as the Institute for Legal Reform (ILR). ILR, formed in 1998, claims to “shine a light on what is wrong in the legal system” and “champion a fair legal system that promotes economic growth and opportunity” but is actually a separately incorporated affiliate of the U.S. Chamber of Commerce—which is not a US federal agency, but the world’s largest business organization and America’s largest lobbying group.
Over the next few decades, these organizations weaponized faux-populist sensationalism to advance a narrative of frivolous lawsuits run amok. This proved extremely effective—by 2005, 49 states had enacted at least one measure on the ATRA’s wish list, including limits on punitive damages and caps on pain and suffering awards in medical malpractice claims. One of their most favored tactics was combing through dockets nationwide to find the most “ridiculous” lawsuits, publishing them, and bringing them to the attention of media outlets. | >
> | Driven by the postwar “legalist reformation” in America, New Deal era courts took initiative to “broaden remedies, increase accountability, lower procedural barriers, and generally increase access to litigation and redress for social injustices. This expansion of legal instruments and legal agency, and the optimism for rule-based solutions to perduring social problems spawned a counter-movement of ‘too much law’ characterized by an idiom of ‘litigation crisis’ and alarmist tort reform rhetorics.”
By the 1980s, this counter-movement had garnered support from sympathetic politicians and transformed into a “full-fledged machine to implement tort reform.” In 1986, hundreds of U.S. and foreign-based corporations formed the American Tort Reform Association (ATRA), a syndicate looking to overhaul civil liability laws at the state and national level. Despite being bankrolled almost exclusively by Fortune 500 companies with a direct financial stake in restricting lawsuits—primarily representatives of the tobacco, insurance, chemical, auto and pharmaceutical industries—ATRA has worked tirelessly to cultivate a public image as an advocate for "the average citizen looking for an end to the threat of being sued." To this end, they created “a number of astroturfed groups relying heavily on phrases like ‘lawsuit abuse’ to sell a narrative that ‘frivolous lawsuits’ were running rampant” such as “Citizens Against Lawsuit Abuse.” Numerous similar groups have since emerged, such as the Institute for Legal Reform (ILR). ILR, formed in 1998, claims to “shine a light on what is wrong in the legal system” and “"champion a fair legal system that promotes economic growth and opportunity” but is actually a separately incorporated affiliate of the U.S. Chamber of Commerce—which is not a US federal agency, but the world’s largest business organization and America’s largest lobbying group.
Over the next few decades, these organizations weaponized faux-populist sensationalism to advance a narrative of frivolous lawsuits run amok. This proved extremely effective—by 2005, 49 states had enacted at least one measure on the ATRA’s wish list, including limits on punitive damages and caps on pain and suffering awards in medical malpractice claims. One of their most favored tactics was combing through dockets nationwide to find the most “ridiculous” lawsuits, publishing them, and bringing them to the attention of media outlets. | | |
The Role of Mass Media | |
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< | The media has played a key role in the tort reform movement’s success in both the courtroom and the collective consciousness. Although some evidence indicates a degree of purposeful cooperation between the two parties, the media has, at times, also been an unwitting participant in the ascendancy of the “litigation crisis” narrative.
Concern over frivolous lawsuits is a quintessential example of a moral panic, a phenomenon defined as “a public mass movement, based on false or exaggerated perceptions or information that exceeds the actual threat society is facing [...] a widespread fear and often an irrational threat to society's values, interests, and safety.” Like other moral panics, such as the “Satanic Panic” of the 1980s and its modern progeny, “QAnon," this one has been fueled in large part by media outlets inadvertently publishing false or misleading stories in an effort to capitalize on the “next big news” before confirming the truth of their reporting. Although some issued corrections once they realized their errors, these stories often took on a life of their own. Like a nationwide game of telephone, they became urban legends that even many self-avowed progressives parroted, all the while unaware of the fables’ origins or role in advancing a corporate agenda. | >
> | The media has played a key role in the tort reform movement’s success in both the courtroom and the collective consciousness. Although some evidence indicates a degree of purposeful cooperation between the two parties, the media has, at times, also been an unwitting participant in the ascendancy of the “litigation crisis” narrative.
Concern over frivolous lawsuits is a quintessential example of a moral panic, a phenomenon defined as “a public mass movement, based on false or exaggerated perceptions or information that exceeds the actual threat society is facing [...] a widespread fear and often an irrational threat to society's values, interests, and safety.” Like other moral panics, such as the “Satanic Panic” of the 1980s and its modern progeny, “QAnon, this one has been fueled in large part by media outlets inadvertently publishing false or misleading stories in an effort to capitalize on the “next big news” before confirming the truth of their reporting. Although some issued corrections once they realized their errors, these stories often took on a life of their own. Like a nationwide game of telephone, they became urban legends that even many self-avowed progressives parroted, all the while unaware of the fables’ origins or role in advancing a corporate agenda. | | | Conclusion
Since the New Deal era, corporate interests have worked behind the scenes to chip away at individual rights and limit their own accountability. This effort, fueled largely by popular stories about “frivolous lawsuits,” has been extremely successful inside and outside of the courtroom, entrenching pro-corporate ideas in law and in the American psyche. |
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