April 24, 2012
The quest for greater transparency in the American civil justice system is the topic of a new book of essays illustrating how a balanced approach to increasing transparency can improve the civil justice system, raise public confidence and protect litigants' privacy.
Fewer than 5 percent of the tens of millions of injury claims filed in the U.S. court system annually are resolved through a public trial with a jury. The vast majority are settled in alternative private forums, such as mediation or arbitration, with terms not disclosed publicly. While some argue that confidentiality helps keep the system running smoothly and efficiently, others express concern that the public is being denied information about hazards.
The book, "Confidentiality, Transparency, and the United States Civil Justice System," is the first publication of the UCLA-RAND Center for Law and Public Policy. Research for the book was funded by the RAND Institute for Civil Justice, part of the RAND Law, Business, and Regulation division at the RAND Corporation, a nonprofit research organization.
"Opinions vary wildly on the merits of reforms that involve greater transparency, such as banning secret settlements," said Robert T. Reville, an editor of the book and a former economist with RAND. "Some think that more transparency will lead to a wave of nuisance lawsuits, while others think that transparency is critical to a democratic society. We hope to better inform this debate."
The recurring policy recommendation in the book is for public access to databases built on systems of claims and settlement reporting that appropriately protects confidentiality of litigants.
"The popular impulse to disclose everything, all of the time, often has perverse effects," said co-editor Joseph W. Doherty, director of the Empirical Research Group at UCLA School of Law. "Without a clear understanding of what kind of information is relevant, to whom, and when, a regime of total transparency will obscure as much as it reveals. Finding the balance between transparency and confidentiality requires better data than is currently available."
The editors say the book is the first to examine the issue of transparency in a multidisciplinary, nonpartisan and empirical manner. Although a confidential system typically generates no data, the book includes several studies based on existing databases or novel data collection efforts. The book also includes three case studies and several reform proposals that call for expanding access to existing databases or using technology to create new ones.
One chapter examines the disclosure of medical malpractice data on public websites in 17 states. Some states report all settlements on websites, while other states require trial and arbitration judgments to become public, but not private settlements. The authors found that public disclosure had no effect on the rate at which cases settled, but lower settlement amounts were found in those states that favored disclosure.
Case studies profiled in the book include an analysis of the September 11 Victim Compensation Fund of 2001, an analysis of the litigation involving the Bayer-manufactured cholesterol drug Baycol and an analysis of recent events in silica litigation. While payers are often seen as the party most likely to be harmed by greater transparency, all three cases outline situations where targeted transparency has benefitted the group. Two other studies included in the book look at reform proposals, with one focusing on the benefits of tailored public data reporting and another exploring the use of information technology to achieve transparency.
"Confidentiality, Transparency, and the United States Civil Justice System," is published by Oxford University Press. The book's other editor is Laura Zakaras of RAND.
RAND Law, Business, and Regulation research addresses some of the most controversial and challenging issues in civil justice, corporate ethics and governance, and business regulation. The research is supported by pooled grants from corporations, trade and professional associations, and individuals; by government grants and contracts; and by private foundations.
The mission of the UCLA-RAND Center for Law and Public Policy is to produce innovative legal scholarship that is grounded in multidisciplinary empirical analysis to guide legal and public policymakers in the 21st century. It was created to support collaborative research and to evolve with the doctrinal, institutional and professional changes in the law. The main activities of the center include research, conferences and the Empirical Legal Scholars Program.