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iii

THE INSTITUTE FOR CIVIL JUSTICE

The mission of the RAND Institute for Civil Justice (ICJ), a division of the RAND Corporation, is toimprove private and public decisionmaking on civil legal issues by supplying policymakers and thepublic with the results of objective, empirically based, analytic research. The ICJ facilitates change in thecivil justice system by analyzing trends and outcomes, identifying and evaluating policy options, andbringing together representatives of different interests to debate alternative solutions to policy problems.The Institute builds on a long tradition of RAND research characterized by an interdisciplinary, empiricalapproach to public policy issues and rigorous standards of quality, objectivity, and independence.

ICJ research is supported by pooled grants from corporations, trade and professional associations, andindividuals; by government grants and contracts; and by private foundations. The Institute disseminatesits work widely to the legal, business, and research communities, and to the general public. In accordancewith RAND policy, all Institute research products are subject to peer review before publication. ICJpublications do not necessarily reflect the opinions or policies of the research sponsors or of the ICJ Boardof Overseers. For additional information about the RAND Institute for Civil Justice, contact:

Robert T. Reville, DirectorRAND Institute for Civil Justice1776 Main Street, P.O. Box 2138Santa Monica, CA 90407-2138Phone: (310) 393-0411 x6786; Fax: (310) 451-6979E-mail: [email protected]: www.rand.org/icj/

A profile of the ICJ, abstracts of its publications, and ordering information can be found on the WorldWide Web at http://www.rand.org/centers/icj/.

iv

BOARD OF OVERSEERS

Raymond I. Skilling (Chair), Executive VicePresident, Aon Corporation

Sheila L. Birnbaum (Vice-Chair), Partner,Skadden, Arps, Slate, Meagher & Flom

Steven Bennett, General Counsel, UnitedServices Automobile Association

James L. Brown, Director, Center for ConsumerAffairs, University of Wisconsin,Milwaukee

Kim M. Brunner, Senior Vice President andGeneral Counsel, State Farm Insurance

Alan F. Charles, RAND

Robert A. Clifford, Partner, Clifford LawOffices, P.C.

John J. Degnan, Vice Chairman and ChiefAdministrative Officer, The ChubbCorporation

Markus Diethelm, Chief Legal Officer, SwissReinsurance Company

Kenneth R. Feinberg, Managing Partner andFounder, The Feinberg Group, LLP

Paul G. Flynn, Superior Court Judge, LosAngeles Superior Court

Kenneth C. Frazier, Senior VP and GeneralCounsel, Merck & Co., Inc.

James A. Greer

Terry J. Hatter, Chief U.S. District Judge, UnitedStates Courthouse

Deborah R. Hensler, Judge John W. FordProfessor of Dispute Resolution, StanfordLaw School

Patrick E. Higginbotham, Circuit Judge, U.S.Court of Appeals, Fifth Circuit

Jeffrey B. Kindler, Senior Vice President andGeneral Counsel, Pfizer Inc.

Steven J. Kumble, Chairman of the Board andChief Executive Officer, LincolnshireManagement, Inc.

Ann Lomeli, Co-General Counsel, MassMutualFinancial Group

James W. Macdonald, Senior Vice President andChief Underwriting Officer, ACE USA

Joseph D. Mandel, Vice Chancellor, LegalAffairs, University of California,Los Angeles

Christopher C. Mansfield, Senior VicePresident and General Counsel, LibertyMutual Insurance Company

Charles W. Matthews, Vice President andGeneral Counsel, ExxonMobil Corporation

M. Margaret McKeown, Circuit Judge, U.S.Court of Appeals, Ninth Circuit

Robert S. Peck, President, Center forConstitutional Litigation, ATLA

Robert W. Pike, Executive Vice President &Secretary, Allstate Insurance Company

Paul M. Pohl, Partner, Jones Day

Thomas E. Rankin, President, California LaborFederation, AFL-CIO

Charles R. Schader, Senior Vice President-Worldwide, American InternationalGroup, Inc.

Dan I. Schlessinger, Global Managing Partner,Lord, Bissell & Brook

Hemant H. Shah, President and Chief ExecutiveOfficer, Risk Management Solutions, Inc.

Larry S. Stewart, Partner, Stewart Tilghman Fox& Bianchi, P.A.

Wayne D. Wilson, Vice President, Legislative &Regulatory Affairs, Farmers InsuranceGroup

Neal S. Wolin, Executive Vice President &General Counsel, Hartford FinancialServices Group, Inc.

v

January 2005

CONTENTS

SUBJECT INDEX........................................................................................................................... 1

Areas of Liability....................................................................................................................... 1

Asbestos ................................................................................................................................ 1

Auto Personal Injury Compensation ........................................................................................ 2

Aviation Accidents ................................................................................................................. 4

Environment .......................................................................................................................... 4

Health Care............................................................................................................................ 5

Law and the Changing American Workplace............................................................................ 7

Product Liability..................................................................................................................... 8

Terrorism............................................................................................................................... 9

Compensation Systems .............................................................................................................. 9

Performance........................................................................................................................... 9

System Design........................................................................................................................ 12

Dispute Resolution.................................................................................................................... 14

Alternative Dispute Resolution................................................................................................ 14

Costs of Dispute Resolution..................................................................................................... 16

Court Delay............................................................................................................................ 17

Special Issues ......................................................................................................................... 19

Economic Effects of the Liability System .................................................................................... 19

General .................................................................................................................................. 19

Law and the Changing American Workplace............................................................................ 20

Product Liability..................................................................................................................... 21

Terrorism............................................................................................................................... 22

Mass Torts and Class Actions..................................................................................................... 22

Outcomes .................................................................................................................................. 23

General .................................................................................................................................. 23

vi Contents

January 2005

Jury Verdicts .......................................................................................................................... 25

Punitive Damages................................................................................................................... 26

Special Studies .......................................................................................................................... 27

Trends in the Tort Litigation System .......................................................................................... 27

ABSTRACTS................................................................................................................................. 31

Monograph/Reports................................................................................................................. 31

Monographs............................................................................................................................. 42

Reports .................................................................................................................................... 43

Notes ....................................................................................................................................... 61

Papers...................................................................................................................................... 67

Issue Papers ............................................................................................................................. 73

Occasional Papers..................................................................................................................... 75

Working Papers........................................................................................................................ 76

Documented Briefings............................................................................................................... 78

Testimony ................................................................................................................................ 80

Drafts ...................................................................................................................................... 82

Reprints ................................................................................................................................... 84

AUTHOR INDEX .......................................................................................................................... 103

1

January 2005

SUBJECT INDEX

Areas of Liability

Asbestos

Carroll, S. J., D. R. Hensler, A. F. Abrahamse, J. Gross, M. White, S. Ashwood, andE. Sloss, Asbestos Litigation Costs and Compensation: An Interim Report, DB-397-ICJ, 2002........................ 78

———, “Assessing Claims Resolution Facilities: What We Need to Know,” RP-107,1992. (Reprinted from Law and Contemporary Problems, Vol. 53, No. 4, Autumn 1990.)........................... 84

———, Asbestos Litigation in the United States: A Brief Overview, P-7776-ICJ, 1992.(Testimony before the Courts and Judicial Administration Subcommittee, UnitedStates House Judiciary Committee, October 1991.). ........................................................................... 71

———, “Fashioning a National Resolution of Asbestos Personal Injury Litigation: AReply to Professor Brickman,” RP-114, 1992. (Reprinted from Cardozo Law Review,Vol. 13, No. 6, April 1992.) ............................................................................................................... 86

Hensler, D. R., S. Carroll, M. White, and J. Gross, Asbestos Litigation in the U.S.: A NewLook at an Old Issue, DB-362.0-ICJ, 2001. ............................................................................................ 78

Hensler, D. R., W. L. F. Felstiner, M. Selvin, and P. A. Ebener, Asbestos in the Courts: TheChallenge of Mass Toxic Torts, R-3324-ICJ, 1985. .................................................................................. 52

Kakalik, J. S., P. A. Ebener, W. L. F. Felstiner, G. W. Haggstrom, and M. G. Shanley,Variation in Asbestos Litigation Compensation and Expenses, R-3132-ICJ, 1984.......................................... 50

Kakalik, J. S., P. A. Ebener, W. L. F. Felstiner, and M. G. Shanley, Costs of AsbestosLitigation, R-3042-ICJ, 1983............................................................................................................... 49

Peterson, M. A., “Giving Away Money: Comparative Comments on Claims ResolutionFacilities,” RP-108, 1992. (Reprinted from Law and Contemporary Problems, Vol. 53,No. 4, Autumn 1990.) ...................................................................................................................... 84

Peterson, M. A., and M. Selvin, Resolution of Mass Torts: Toward a Framework forEvaluation of Aggregative Procedures, N-2805-ICJ, 1988......................................................................... 63

———, “Mass Justice: The Limited and Unlimited Power of Courts,” RP-116, 1992.(Reprinted from Law and Contemporary Problems, No. 3, Summer 1991.) ............................................... 87

2 Subject Index

January 2005

Selvin, M., and L. Picus, The Debate over Jury Performance: Observations from a RecentAsbestos Case, R-3479-ICJ, 1987. ........................................................................................................ 53

Auto Personal Injury Compensation

Abrahamse, A., and S. J. Carroll, The Effects of a Choice Auto Insurance Plan on InsuranceCosts, MR-540-ICJ, 1995. .................................................................................................................. 32

———, The Effects of a Choice Automobile Insurance Plan Under Consideration by the JointEconomic Committee of the United States Congress, DRU-1609-ICJ, April 1997. ........................................ 83

———, The Frequency of Excess Claims for Automobile Personal Injuries, RP-810, 1999.(reprinted from G. Dionne and C. Laberge-Nadeau, eds., Automobile Insurance: RoadSafety, New Drivers, Risks, Insurance Fraud and Regulation, Kluwer Academic Publishers,1999.) ............................................................................................................................................ 96

Carroll, S. J., Effects of an Auto-Choice Automobile Insurance Plan on Costs and Premiums,CT-141-1, March 1997. (Written statement delivered on March 19, 1997, to the JointEconomic Committee of the United States Congress.)........................................................................ 81

———, Effects of a Choice Automobile Insurance Plan on Costs and Premiums: TestimonyPresented to the Senate Commerce, Science, and Transportation Committee, July 1997,CT-144, July 1997. (Written statement delivered on July 17, 1997, to the Commerce,Science, and Transportation Committee of the United States Senate.) ................................................. 81

———, The Effects of a No Pay/No Play Plan on the Costs of Auto Insurance in Texas,IP-174, 1998. ................................................................................................................................... 73

Carroll, S. J., and A. F. Abrahamse, The Effects of a Proposed No-Fault Plan on the Costs ofAuto Insurance in California: An Updated Analysis, IP-146-1, January 1996.............................................. 73

———, The Effects of Proposition 213 on the Costs of Auto Insurance in California, IP-157,September 1996............................................................................................................................... 73

———, “The Effects of a Choice Automobile Insurance Plan on Insurance Costs andCompensation,” RP-707, 1998 (Reprinted from CPCU Journal, Spring 1998.)........................................ 94

———, The Effects of a Choice Automobile Insurance Plan on Insurance Costs andCompensation: An Updated Analysis, MR-970-ICJ, 1998. ....................................................................... 36

———, The Effects of a Choice Automobile Insurance Plan on Insurance Costs andCompensation: An Analysis Based on 1997 Data, MR-1134-ICJ, 1999. ...................................................... 37

———, “The Effects of a Choice Auto Insurance Plan on Insurance Costs andCompensation,” RP-863-ICJ, 2000. (Reprinted from Journal of Insurance Regulation, Vol.18, No. 1, Fall 1999.) ........................................................................................................................ 98

———, “The Frequency of Excess Auto Personal Injury Claims,” RP-983-ICJ, 2002.(Reprinted from American Law and Economic Review, Vol. 3, No. 2, 2001.)............................................. 101

Carroll, S. J., A. F. Abrahamse, and M. E. Vaiana, The Costs of Excess Medical Claims forAutomobile Personal Injuries, DB-139-ICJ, 1995.................................................................................... 78

Subject Index 3

January 2005

Carroll, S. J., and J. S. Kakalik, “No-Fault Approaches to Compensating Auto AccidentVictims,” RP-229, 1993. (Reprinted from The Journal of Risk and Insurance, Vol. 60, No. 2,1993.) ............................................................................................................................................ 88

Carroll, S. J., and J. S. Kakalik, with D. Adamson, No-Fault Automobile Insurance:A Policy Perspective, R-4019/1-ICJ, 1991............................................................................................. 59

Carroll, S. J., J. S. Kakalik, N. M. Pace, and J. L. Adams, No-Fault Approaches toCompensating People Injured in Automobile Accidents, R-4019-ICJ, 1991 .................................................. 59

Hammitt, J. K., Automobile Accident Compensation, Volume II, Payments by Auto Insurers,R-3051-ICJ, 1985.............................................................................................................................. 49

Hammitt, J. K., R. L. Houchens, S. S. Polin, and J. E. Rolph, Automobile AccidentCompensation: Volume IV, State Rules, R-3053-ICJ, 1985. ...................................................................... 50

Hammitt, J. K., and J. E. Rolph, Limiting Liability for Automobile Accidents: Are No-FaultTort Thresholds Effective? N-2418-ICJ, 1985. ........................................................................................ 62

Hawken, A., S. J. Carroll, and A. F. Abrahamse, The Effects of Third-Party Bad FaithDoctrine on Automobile Insurance Costs and Compensation, MR-1199-ICJ, 2001. ....................................... 37

Houchens, R. L., Automobile Accident Compensation: Volume III, Payments from AllSources, R-3052-ICJ, 1985.................................................................................................................. 50

Loughran, D. S., The Effect of No-Fault Automobile Insurance on Driver Behavior andAutomobile Accidents in the United States, MR-1384-ICJ, 2001. .............................................................. 39

———, Deterring Fraud: The Role of General Damage Awards in Automobile InsuranceSettlements, DRU-2832-ICJ, 2002. ...................................................................................................... 83

MacCoun, R. J., E. A. Lind, D. R. Hensler, D. L. Bryant, and P. A. Ebener, AlternativeAdjudication: An Evaluation of the New Jersey Automobile Arbitration Program, R-3676-ICJ,1988. ............................................................................................................................................ 55

O’Connell, J., S. J. Carroll, A. Abrahamse, M. Horowitz, A. Karan. “The Effect ofAllowing Motorists to Opt Out of Tort Law in the United States,” RP-745, 1998.(Reprinted from La Cahiers du Droit, Vol. 471, 1998.) .......................................................................... 94

O’Connell, J., S. J. Carroll, M. Horowitz, and A. Abrahamse, “Consumer Choice in theAuto Insurance Market,” RP-254, 1994. (Reprinted from the Maryland Law Review,Vol. 52, 1993.) ................................................................................................................................. 88

O’Connell, J., S. J. Carroll, M. Horowitz, A. F. Abrahamse, and P. Jamieson, “TheComparative Costs of Allowing Consumer Choice for Auto Insurance in All FiftyStates,” (Reprinted from Maryland Law Review, Vol. 55, No. 1, 1996.) RP-518, 1996. .............................. 92

O’Connell, J., S. J. Carroll, M. Horowitz, A. Abrahamse, and D. Kaiser, “The Costs ofConsumer Choice for Auto Insurance in States Without No-Fault Insurance,” RP-442,1995. (Reprinted from Maryland Law Review, Vol. 54, No. 2, 1995.) ...................................................... 91

Rolph, J. E., with J. K. Hammitt, R. L. Houchens, and S. S. Polin, Automobile AccidentCompensation: Volume I, Who Pays How Much How Soon? R-3050-ICJ, 1985............................................ 49

4 Subject Index

January 2005

Aviation Accidents

Kakalik, J. S., E. M. King, M. Traynor, P. A. Ebener, and L. Picus, Costs andCompensation Paid in Aviation Accident Litigation, R-3421-ICJ, 1988 ...................................................... 53

———, Aviation Accident Litigation Survey: Data Collection Forms, N-2773-ICJ, 1988............................... 63

King, E. M., and J. P. Smith, Computing Economic Loss in Cases of Wrongful Death,R-3549-ICJ, 1988.............................................................................................................................. 54

———, Dispute Resolution Following Airplane Crashes, R-3585-ICJ, 1988. ............................................... 55

———, Economic Loss and Compensation in Aviation Accidents, R-3551-ICJ, 1988. ................................... 54

———, Executive Summaries of the Aviation Accident Study, R-3684, 1988. ............................................. 56

Lebow, C. C., L. P. Sarsfield, W. L. Stanley, E. Ettedgui, and G. Henning, Safety in theSkies: Personnel and Parties in NTSB Aviation Accident Investigations, MR-1122-ICJ, 1999......................... 37

Sarsfield, L. P., W. L. Stanley, C. C. Lebow, E. Ettedgui, and G. Henning. Safety in theSkies: Personnel and Parties in NTSB Aviation Accident Investigations: Master Volume.MR-1122/1-ICJ, 2000....................................................................................................................... 36

Environment

Acton, J. P., Understanding Superfund: A Progress Report, R-3838-ICJ, 1989. ........................................... 57

Acton, J. P., and L. S. Dixon with D. Drezner, L. Hill, and S. McKenney, Superfund andTransaction Costs: The Experiences of Insurers and Very Large Industrial Firms, R-4132-ICJ,1992. ............................................................................................................................................ 59

Dixon, L. S., Superfund and Transaction Costs: The Experiences of Insurers and Very LargeIndustrial Firms, CT-102, 1992. .......................................................................................................... 80

———, RAND Research on Superfund Transaction Costs: A Summary of Findings to Date,CT-111, November 1993. ................................................................................................................. 80

———, Fixing Superfund: The Effect of the Proposed Superfund Reform Act of 1994 onTransaction Costs, MR-455-ICJ, 1994. ................................................................................................. 31

———, Superfund Liability Reform: Implications for Transaction Costs and Site Cleanup,CT-125, 1995. .................................................................................................................................. 80

———, The Financial Implications of Releasing Small Firms and Small-Volume Contributorsfrom Superfund Liability, MR-1171-EPA, 2000. .................................................................................... 37

Dixon, L. S., D. S. Drezner, and J. K. Hammitt, Private-Sector Cleanup Expenditures andTransaction Costs at 18 Superfund Sites, MR-204-EPA/RC, 1993............................................................ 31

Dixon, L. S., and S. Garber, California’s Ozone-Reduction Strategy for Light-Duty Vehicles:Direct Costs, Direct Emission Effects and Market Responses, MR-695-ICJ, 1996. ........................................ 33

———, Economic Perspectives on Revising California’s Zero-Emission Vehicle Mandate,CT-137, March 1996......................................................................................................................... 80

———, Fighting Air Pollution in Southern California by Scrapping Old Vehicles, MR-1256-ICJ/PPIC, 2000. .............................................................................................................................. 38

Subject Index 5

January 2005

Dixon, L. S., S. Garber, and M. E. Vaiana, Making ZEV Policy Despite Uncertainty: AnAnnotated Briefing for the California Air Resources Board, DRU-1266-1-ICJ, 1995...................................... 83

———, California’s Ozone-Reduction Strategy for Light-Duty Vehicles: An EconomicAssessment: Summary , MR-695/1-ICJ, 1996. ...................................................................................... 33

Garber, S., and J. K. Hammitt. “Risk Premiums for Environmental Liability: DoesSuperfund Increase the Cost of Capital?” RP-755, 1999. (Reprinted from Journal ofEnvironmental Economics and Management, Vol. 36, No. 3, 1998.). ......................................................... 95

Reuter, P., The Economic Consequences of Expanded Corporate Liability: An ExploratoryStudy, N-2807-ICJ, 1988.................................................................................................................... 63

Health Care

Bailis, D. S., and R. J. MacCoun, “Estimating Liability Risks with the Media as YourGuide,” RP-606, 1996. (Reprinted from Law and Human Behavior, Vol. 20, No. 4, 1996,pp. 419–429.) .................................................................................................................................. 92

Danzon, P. M., Contingent Fees for Personal Injury Litigation, R-2458-HCFA, 1980.................................. 43

———, The Disposition of Medical Malpractice Claims, R-2622-HCFA, 1980. ........................................... 43

———, Why Are Malpractice Premiums So High—Or So Low? R-2623-HCFA, 1980................................. 43

———, The Frequency and Severity of Medical Malpractice Claims, R-2870-ICJ/HCFA,1982. ............................................................................................................................................ 45

———, The Effects of Tort Reform on the Frequency and Severity of Medical MalpracticeClaims: A Summary of Research Results, P-7211-ICJ, 1986. (Testimony before theCommittee on the Judiciary, United States Senate, March 1986.)......................................................... 68

———, New Evidence on the Frequency and Severity of Medical Malpractice Claims,R-3410-ICJ, 1986.............................................................................................................................. 52

Danzon, P. M., and L. A. Lillard, The Resolution of Medical Malpractice Claims: Modelingthe Bargaining Process, R-2792-ICJ, 1982. ............................................................................................ 44

———, The Resolution of Medical Malpractice Claims: Research Results and PolicyImplications, R-2793-ICJ, 1982. .......................................................................................................... 45

———, Settlement Out of Court: The Disposition of Medical Malpractice Claims, P-6800,1982. ............................................................................................................................................ 67

Farley, D. O., M. Greenberg, C. Nelson, S. Seabury, Assessment of 24-Hour Care Optionsfor California. MG-280-ICJ, 2004 ........................................................................................................ 42

Farley, D. O., M. Greenberg, C. Nelson, S. Seabury, Assessment of 24-Hour Care Optionsfor California, WR-163-1-ICJ, 2004. .................................................................................................... 76

Gresenz, C. R., D. R. Hensler, D. M. Studdert, B. Dombey-Moore, and N. M. Pace, AFlood of Litigation? Predicting the Consequences of Changing Legal Remedies Available toERISA Beneficiaries, IP-184, 1999. ...................................................................................................... 74

Kravitz, R. L., J. E. Rolph, and K. A. McGuigan, Malpractice Claims Data as a QualityImprovement Tool: I. Epidemiology of Error in Four Specialties, N-3448/1-RWJ, 1991................................. 65

6 Subject Index

January 2005

Lewis, E., and J. E. Rolph, The Bad Apples? Malpractice Claims Experience of Physicianswith a Surplus Lines Insurer, P-7812, 1993. .......................................................................................... 72

Pace, N. M., D. Golinelli, and L. Zakaras, Capping Non-Economic Awards in MedicalMalpractice Trials: California Jury Verdicts Under MICRA, MG-234-ICJ, 2004. ........................................ 42

Pace, N. M., R. T. Reville, L. Galway, A. B. Geller, O. Hayden, L. A. Hill, C. Mardesich,F. W. Neuhauser, S. Polich, and J. Yeom, Improving Dispute Resolution for California’sInjured Workers, MR-1425-ICJ. 2003................................................................................................... 39

Pace, N. M., R. T. Reville, L. Galway, A. B. Geller, O. Hayden, L. A. Hill, C. Mardesich,F. W. Neuhauser, S. Polich, J. Yeom, and L. Zakaras, Improving Dispute Resolution forCalifornia’s Injured Workers: Executive Summary, MR-1425/1-ICJ, 2003. ................................................ 40

Reville, R. T., S. Seabury, and F. Neuhauser, Evaluation of California’s PermanentDisability Rating Schedule: Interim Report, DB-443-ICJ, 2003. ................................................................ 79

Ridgely, S., R. Borum, and J. Petrila, The Effectiveness of Involuntary OutpatientTreatment: Empirical Evidence and the Experience of Eight States, MR-1340-CSCR, 2001. ........................... 38

Rolph, E. S., Health Care Delivery and Tort: Systems on a Collision Course? ConferenceProceedings, Dallas, June 1991, N-3524-ICJ, 1992............................................................................... 66

Rolph, E. S., E. Moller, and J. Rolph, “Arbitration Agreements in Health Care: Mythsand Reality,” RP-746, 1998. (Reprinted from Law and Contemporary Problems, Vol. 60No. 1.)............................................................................................................................................ 94

Rolph, J. E., Some Statistical Evidence on Merit Rating in Medical Malpractice Insurance,N-1725-HHS, 1981........................................................................................................................... 61

———, Merit Rating for Physicians’ Malpractice Premiums: Only a Modest Deterrent,N-3426-MT/RWJ/RC, 1991. ............................................................................................................ 64

Rolph, J. E., R. L. Kravitz, and K. A. McGuigan, Malpractice Claims Data as a QualityImprovement Tool: II. Is Targeting Effective? N-3448/2-RWJ, 1991.......................................................... 65

Studdert, D. M., “Direct Contracts, Data Sharing and Employee Risk Selection: NewStakes for Patient Privacy in Tomorrow’s Health Insurance Markets,” RP-812, 1999.(Reprinted from American Journal of Law and Medicine, Vol. 25, 1999.).................................................. 96

———, Legal Issues in the Delivery of Alternative Medicine, RP-862, 1999. (Reprinted fromJAMWA, Vol. 54, No. 4). .................................................................................................................. 97

Studdert, D. M., L. A. Fritz, and T. A. Brennan, “The Jury Is Still In: Florida’s Birth-Related Neurological Injury Compensation Plan After a Decade,” RP-886-ICJ, 2002.(Reprinted from Journal of Health Politics, Policy and Law, Vol. 25, No. 3, June 2000.) ............................. 98

Studdert, D. M., W. M. Sage, C. R. Gresenz, and D. R. Hensler, “Expanded ManagedCare Liability: What Impact on Employer Coverage?” RP-860, 2000. (Reprinted fromHealth Affairs, Vol. 18, No. 6, November/December 1999.) ................................................................. 97

Studdert, D. M., E. J. Thomas, H. R. Burstin, B. I. Zbar, E. J. Orav, and T. A . Brennan,“Negligent Care and Malpractice Claiming Behavior in Utah and Colorado,” RP-885,2000. (Reprinted from Medical Care, Vol. 38, 2000.)............................................................................. 98

Subject Index 7

January 2005

Thomas, E. J., D. M. Studdert, J. P. Newhouse, R. I. W. Zbar, K. Mason Howard, E. J.Williams, and T. A. Brennan, Costs of Medical Injuries in Utah and Colorado, RP-896, 2000.(Reprinted from Inquiry, Vol. 36, Fall 1999.)....................................................................................... 99

Williams, A. P., Malpractice, Outcomes, and Appropriateness of Care, P-7445, May 1988............................ 70

Law and the Changing American Workplace

Biddle, J. E., L. I. Boden, and R. T. Reville, “Permanent Partial Disability fromOccupational Injuries: Earnings Losses and Replacement in Three States,” RP-939,2001. (Reprinted from Ensuring Health and Income Security for an Aging Workforce, PeterP. Budetti, et al., eds., Kalamazoo, Mich.: W.E. Upjohn Institute for EmploymentResearch, 2001.) .............................................................................................................................. 100

Darling-Hammond, L., and T. J. Kniesner, The Law and Economics of Workers’Compensation, R-2716-ICJ, 1980......................................................................................................... 43

———, The Law and Economics of Workers’ Compensation: Executive Summary,R-2716/1-ICJ, 1980. ......................................................................................................................... 44

Dertouzos, J. N., E. Holland, and P. A. Ebener, The Legal and Economic Consequences ofWrongful Termination, R-3602-ICJ, 1988. ............................................................................................ 55

Dertouzos, J. N., and L. A. Karoly, Labor-Market Responses to Employer Liability, R-3989-ICJ, 1992......................................................................................................................................... 58


———, Assessment of 24-Hour Care Options for California, WR-163-1-ICJ, 2004. ..................................... 76

Lakdawalla, D., R. T. Reville, S. A. Seabury, How Does Health Insurance Affect Workers'Compensation Filing? WR-205-ICJ, 2004. ............................................................................................ 76

Marquis, M. S., Economic Consequences of Work-Related Injuries, CT-103, 1992........................................ 80

Nuckols, T. K., B. O. Wynn, Yee-Wei Lim, R. Shaw, S. Mattke, T. Wickizer, P. Harber,P. Wallace, S. M. Asch, C. MacLean, R. Hasenfeld, Evaluating Medical TreatmentGuideline Sets for Injured Workers in California, WR-203-IJC, 2004. ....................................................... 76


Pace, N. M., R. T. Reville, L. Galway, A. B. Geller, O. Hayden, L. A. Hill, C. Mardesich,F. W. Neuhauser, S. Polich, J. Yeom, and L. Zakaras, Improving Dispute Resolution forCalifornia’s Injured Workers: Executive Summary, MR-1425/1-ICJ, 2003. ................................................ 40

Peterson, M. A., R. T. Reville, and R. Kaganoff Stern, with P. Barth, CompensatingPermanent Workplace Injuries: A Study of the California System, MR-920-ICJ, 1997. .................................. 35

Reville, R. T., J. Bhattacharya, and L. R. Sager Weinstein, “New Methods and DataSources for Measuring Economic Consequences of Workplace Injuries,” RP-972-ICJ,2002. (Reprinted from American Journal of Industrial Medicine, Vol. 40, No. 4, October2001.) ............................................................................................................................................ 100

8 Subject Index

January 2005

Reville, R. T., L. I. Boden, J. E. Biddle, and C. Mardesich, An Evaluation of New MexicoWorkers’ Compensation Permanent Partial Disability and Return to Work, MR-1414-ICJ,2001. ............................................................................................................................................ 39

Reville, R. T., S. Polich, S. Seabury, and E. Giddens . Permanent Disability at Private, Self-Insured Firms: A Study of Earnings Loss, Replacement and Return to Work for Workers’Compensation Claimants, MR-1268-ICJ, 2000. ...................................................................................... 38

Reville, R. T., R. F. Schoeni, and C. W. Martin, Trends in Earnings Loss from DisablingWorkplace Injuries in California: The Role of Economic Conditions, MR-1457-ICJ, 2002. .............................. 40

Reville, R. T., S. Seabury, and F. Neuhauser, Evaluation of California’s PermanentDisability Rating Schedule: Interim Report, DB-443-ICJ. 2003. ................................................................ 79

Seabury, S. A., R. T. Reville, F. Neuhauser, Data for Adjusting Disability Ratings to ReflectDiminished Future Earnings and Capacity in Compliance with SB 899, WR-214-ICJ, 2004. .......................... 77

Stern, R. K., M. A. Peterson, R. T. Reville, and M. E. Vaiana, Findings andRecommendations on California’s Permanent Partial Disability System: Executive Summary,MR-919-ICJ, 1997. ........................................................................................................................... 35

Studdert, D. M., Direct Contracts, “Data Sharing and Employee Risk Selection: NewStakes for Patient Privacy in Tomorrow’s Health Insurance Markets,” RP-812, 1999.(Reprinted from American Journal of Law and Medicine, Vol. 25, 1999.).................................................. 96

Victor, R. B., Workers’ Compensation and Workplace Safety: The Nature of EmployerFinancial Incentives, R-2979-ICJ, 1982................................................................................................. 47

Victor, R. B., L. R. Cohen, and C. E. Phelps, Workers’ Compensation and Workplace Safety:Some Lessons from Economic Theory, R-2918-ICJ, 1982. ......................................................................... 46

Wynn, B. O., Adopting Medicare Fee Schedules: Consideration for the California Workers’Compensation Program, MR-1776-ICJ, 2003......................................................................................... 40

———, Inflation in Hospital Charges: Implications for the California Workers’ CompensationProgram, CT-202-ICJ. 2003................................................................................................................ 81

Product Liability


Dunworth, T., Product Liability and the Business Sector: Litigation Trends in Federal Courts,R-3668-ICJ, 1988.............................................................................................................................. 55

Eads, G., and P. Reuter, Designing Safer Products: Corporate Responses to Product LiabilityLaw and Regulation, R-3022-ICJ, 1983................................................................................................. 48

———, “Designing Safer Products: Corporate Responses to Product Liability Law andRegulation,” P-7089-ICJ, 1985. (Reprinted from the Journal of Product Liability, Vol. 7,1985.) ............................................................................................................................................ 67

Garber, S., Product Liability and the Economics of Pharmaceuticals and Medical Devices,R-4285-ICJ, 1993.............................................................................................................................. 60

Subject Index 9

January 2005

———, “Product Liability, Punitive Damages, Business Decisions, and EconomicOutcomes,” RP-747, 1998. (Reprinted from Wisconsin Law Review, Vol. 1998, No. 1.) ............................ 95

Garber, S., and J. Adams, “Product and Stock Market Responses to AutomotiveProduct Liability Verdicts,” RP-794, 1999. (Reprinted from M. Baily, P. Reiss, andC. Winston, eds., Brookings Papers on Economic Activity: Microeconomics 1998). ..................................... 95

Garber, S., and A. G. Bower, “Newspaper Coverage of Automotive Product LiabilityVerdicts,” RP-809, 1999 (Reprinted from Law & Society Review, Vol. 33, No. 1, 1999). ........................... 95

Hensler, D. R., Summary of Research Results on Product Liability, P-7271-ICJ, 1986.(Testimony to the Committee on the Judiciary, United States Senate, October 1986.)............................ 69

———, What We Know and Don’t Know About Product Liability, P-7775-ICJ, 1993.(Testimony to the Commerce Committee, United States Senate, September 1991.)............................... 71

Martin, J. W., Jr., Establishing a Good-Faith Defense to Punitive-Damage Claims, P-8048,2000. ............................................................................................................................................ 72

Moller, E., Trends in Civil Jury Verdicts Since 1985, MR-694-ICJ, 1996. .................................................. 32

Peterson, M. A., Civil Juries in the 1980s: Trends in Jury Trials and Verdicts in Californiaand Cook County, Illinois, R-3466-ICJ, 1987. ........................................................................................ 53

Reuter, P., The Economic Consequences of Expanded Corporate Liability: An ExploratoryStudy, N-2807-ICJ, 1988.................................................................................................................... 63

Terrorism

Dixon, L. J., Arlington, S. J. Carroll, D. Lakdawalla, R. T. Reville, and D. M. Adamson,Issues and Options for Government Intervention in the Market for Terrorism Insurance, OP-135-ICJ, 2004. ........................................................................................................................... 75

Dixon, L. J., and R. Kaganoff Stern, Compensation for Losses from the 9/11 Attacks,MG-264-ICJ, 2004. .......................................................................................................................... 42

Lakdawalla, D., and G. Zanjani, Insurance, Self-Protection, and the Economics of Terrorism,WR-171-ICJ, 2004. .......................................................................................................................... 76

Compensation Systems

Performance

Abrahamse, A., and S. J. Carroll, The Effects of a Choice Auto Insurance Plan on InsuranceCosts, MR-540-ICJ, 1995. .................................................................................................................. 32


Carroll, S. J., and A. Abrahamse, The Effects of a Proposed No-Fault Plan on the Costs ofAuto Insurance in California: An Updated Analysis, IP-146-1, January 1996.............................................. 73

10 Subject Index

January 2005

———, “The Effects of a Choice Automobile Insurance Plan on Insurance Costs andCompensation,” RP-707, 1998. (Reprinted from CPCU Journal, Spring 1998.)....................................... 94

———, The Effects of a Choice Automobile Insurance Plan on Insurance Costs andCompensation: An Updated Analysis, MR-970-ICJ, 1998. ....................................................................... 36

———, The Effects of a Choice Automobile Insurance Plan on Insurance Costs andCompensation: An Analysis Based on 1997 Data, MR-1134-ICJ, 1999. ...................................................... 37

———, “The Frequency of Excess Claims for Automobile Personal Injuries,” RP-810,1999. (Reprinted from G. Dionne and C. Laberge-Nadeau, eds., Automobile Insurance:Road Safety, New Drivers, Risks, Insurance Fraud and Regulation, Kluwer AcademicPublishers, 1999.)............................................................................................................................ 96

———, “The Frequency of Excess Auto Personal Injury Claims,” RP-983-ICJ, 2002.(Reprinted from American Law and Economic Review, Vol. 3, No. 2, 2001.)............................................. 101

Carroll, S. J., A. Abrahamse, M. S. Marquis, and M. E. Vaiana, Liability System Incentivesto Consume Excess Medical Care, DRU-1264-ICJ, 1995. ......................................................................... 82

Carroll, S. J., A. Abrahamse, and M. E. Vaiana, The Costs of Excess Medical Claims forAutomobile Personal Injuries, DB-139-ICJ, 1995.................................................................................... 78


Carroll, S. J., and J. S. Kakalik, “No-Fault Approaches to Compensating Auto AccidentVictims,” RP-229, 1993. (Reprinted from The Journal of Risk and Insurance, Vol. 60, No. 2,1993.) ............................................................................................................................................ 88

Carroll, S. J., and J. S. Kakalik, with D. Adamson, No-Fault Automobile Insurance:A Policy Perspective, R-4019/1-ICJ, 1991............................................................................................. 59

Carroll, S. J., J. S. Kakalik, N. M. Pace, and J. L. Adams, No-Fault Approaches toCompensating People Injured in Automobile Accidents, R-4019-ICJ, 1991. ................................................. 59

Dixon, L. J., J. Arlington, S. J. Carroll, D. Lakdawalla, R. T. Reville, and D. M.Adamson, Issues and Options for Government Intervention in the Market for TerrorismInsurance, OP-135-ICJ, 2004. ............................................................................................................. 75



Hensler, D. R., M. S. Marquis, A. Abrahamse, S. H. Berry, P. A. Ebener, E. G. Lewis,E. A. Lind, R. J. MacCoun, W. G. Manning, J. A. Rogowski, and M. E. Vaiana,Compensation for Accidental Injuries: Research Design and Methods, N-3230-HHS/ICJ,1991. ............................................................................................................................................ 64

———, Compensation for Accidental Injuries in the United States, R-3999-HHS/ICJ, 1991......................... 58

———, Compensation for Accidental Injuries in the United States: Executive Summary,R-3999/1-HHS/ICJ, 1991................................................................................................................. 58

Subject Index 11

January 2005

King, E. M., and J. P. Smith, Economic Loss and Compensation in Aviation Accidents,R-3551-ICJ, 1988.............................................................................................................................. 54

Lakdawalla, D., R. T. Reville, S. A. Seabury, How Does Health Insurance Affect Workers'Compensation Filing? WR-205-ICJ, 2004. ............................................................................................ 76


Loughran, D. S., The Effect of No-Fault Automobile Insurance on Driver Behavior andAutomobile Accidents in the United States, MR-1384-ICJ, 2001................................................................ 39


Marquis, M. S., and W. G. Manning, “Lifetime Costs and Compensation for Injuries,”RP-858, 1999. (Reprinted from Inquiry, Vol. 36, No. 3)........................................................................ 97

O’Connell, J., S. J. Carroll, M. Horowitz, and A. Abrahamse, “Consumer Choice in theAuto Insurance Market,” RP-254, 1994. (Reprinted from the Maryland Law Review,Vol. 52, 1993.) ................................................................................................................................. 88

O’Connell, J., S. J. Carroll, M. Horowitz, A. Abrahamse, and D. Kaiser, “The Costs ofConsumer Choice for Auto Insurance in States Without No-Fault Insurance,” RP-442,1995. (Reprinted from Maryland Law Review, Vol. 54, No. 2, 1995.) ...................................................... 91

Pace, N. M., D. Golinelli, and L. Zakaras, Capping Non-Economic Awards in MedicalMalpractice Trials: California Jury Verdicts Under MICRA, MG-234-ICJ, 2004.......................................... 42


Pace, N. M., R. T. Reville, L. Galway, A. B. Geller, O. Hayden, L. A. Hill, C. Mardesich,F. W. Neuhauser, S. Polich, J. Yeom, and L. Zakaras, Improving Dispute Resolution forCalifornia’s Injured Workers: Executive Summary, MR-1425/1-ICJ. 2003. ................................................ 40

Peterson, M. A., “Giving Away Money: Comparative Comments on Claims ResolutionFacilities,” RP-108, 1992. (Reprinted from Law and Contemporary Problems, Vol. 53,No. 4, Autumn 1990.) ...................................................................................................................... 84

Peterson, M. A., R. T. Reville, and R. K. Stern, with P. Barth, Compensating PermanentWorkplace Injuries: A Study of the California System, MR-920-ICJ, 1997................................................... 35

Peterson, M. A., and M. Selvin, “Mass Justice: The Limited and Unlimited Power ofCourts,” RP-116, 1992. (Reprinted from Law and Contemporary Problems, Vol. 54, No. 3,Summer 1991.) ............................................................................................................................... 87

Reville, R. T., “The Impact of a Disabling Workplace Injury on Earnings and LaborForce Participation,” RP-921, 2000. (Reprinted from J. C. Haltiwanger et al., eds.,The Creation and Analysis of Employer-Employee Matched Data, Elsevier, 1999.)....................................... 100


12 Subject Index

January 2005

Reville, R. T., S. Polich, S. Seabury, and E. Giddens, Permanent Disability at Private, Self-Insured Firms: A Study of Earnings Loss, Replacement and Return to Work for Workers’Compensation Claimants, MR-1268-ICJ, 2000. ...................................................................................... 38

Reville, R. T., R. F. Schoeni, and C. W. Martin, Trends in Earnings Loss from DisablingWorkplace Injuries in California: The Role of Economic Conditions, MR-1457-ICJ, 2002. ............................... 40

R. T. Reville, S. Seabury, and F. Neuhauser, Evaluation of California’s PermanentDisability Rating Schedule: Interim Report, DB-443-ICJ, 2003. ................................................................ 79

Rolph, J. E., with J. K. Hammitt, R. L. Houchens, and S. S. Polin, Automobile AccidentCompensation: Volume I, Who Pays How Much How Soon? R-3050-ICJ, 1985............................................ 49



Studdert, D. M., L. A. Fritz, and T. A. Brennan, “The Jury Is Still In: Florida’s Birth-Related Neurological Injury Compensation Plan After a Decade,” RP-886-ICJ, 2002.(Reprinted from Journal of Health Politics, Policy and Law, Vol. 25, No. 3, June 2000.) ............................. 98



System Design

Abrahamse, A., and S. J. Carroll, “The Frequency of Excess Claims for AutomobilePersonal Injuries,” RP-810, 1999. (Reprinted from G. Dionne and C. Laberge-Nadeau,eds., Automobile Insurance: Road Safety, New Drivers, Risks, Insurance Fraud andRegulation, Kluwer Academic Publishers, 1999.)................................................................................ 96

Anderson, M., and R. MacCoun, “Goal Conflict in Juror Assessments of Compensatoryand Punitive Damages,” RP-830, 1999. (Reprinted from Law and Human Behavior, Vol.23, No. 3.)....................................................................................................................................... 96



Dixon, L. J., and R. Kaganoff Stern, Compensation for Losses from the 9/11 Attacks,MG-264-ICJ, 2004. ........................................................................................................................... 42

Farley, D. O., M. Greenberg, C. Nelson, S. Seabury, Assessment of 24-Hour Care Optionsfor California. MG-280-ICJ, 2004. ....................................................................................................... 42

Subject Index 13

January 2005

Farley, D. O., M. Greenberg, C. Nelson, S. Seabury, Assessment of 24-Hour Care Optionsfor California, WR-163-1-ICJ, 2004. .................................................................................................... 76

Hammitt, J. K., R. L. Houchens, S. S. Polin, and J. E. Rolph, Automobile AccidentCompensation: Volume IV, State Rules, R-3053-ICJ, 1985. ...................................................................... 50

Hammitt, J. K., and J. E. Rolph, Limiting Liability for Automobile Accidents: Are No-FaultTort Thresholds Effective? N-2418-ICJ, 1985. ........................................................................................ 62


Hensler, D. R., “Resolving Mass Toxic Torts: Myths and Realities,” P-7631-ICJ, 1990.(Reprinted from the University of Illinois Law Review, Vol. 1989, No. 1, 1989.) ....................................... 71


King, E. M., and J. P. Smith, Computing Economic Loss in Cases of Wrongful Death,R-3549-ICJ, 1988.............................................................................................................................. 54


Loughran, D. S., The Effect of No-Fault Automobile Insurance on Driver Behavior andAutomobile Accidents in the United States, MR-1384-ICJ, 2001................................................................ 39


Nuckols, T. K., B. O. Wynn, Yee-Wei Lim, R. Shaw, S. Mattke, T. Wickizer, P. Harber,P. Wallace, S. M. Asch, C. MacLean, R. Hasenfeld, Evaluating Medical TreatmentGuideline Sets for Injured Workers in California, WR-203-IJC, 2004. ....................................................... 76


Pace, N. M., R. T. Reville, L. Galway, A. B. Geller, O. Hayden, L. A. Hill, C. Mardesich,F. W. Neuhauser, S. Polich, and J. Yeom, Improving Dispute Resolution for California’sInjured Workers, MR-1425-ICJ, 2003................................................................................................... 39

Pace, N. M., R. T. Reville, L. Galway, A. B. Geller, O. Hayden, L. A. Hill, C. Mardesich,F. W. Neuhauser, S. Polich, J. Yeom, and L. Zakaras, Improving Dispute Resolution forCalifornia’s Injured Workers: Executive Summary, MR-1425/1-ICJ, 2003 ................................................. 40


Reville, R. T., “The Impact of a Disabling Workplace Injury on Earnings and LaborForce Participation,” RP-921, 2000. (Reprinted from J. C. Haltiwanger et al., eds.,The Creation and Analysis of Employer-Employee Matched Data, Elsevier, 1999.)....................................... 100


14 Subject Index

January 2005

Reville, R. T., S. Polich, S. Seabury, and E. Giddens . Permanent Disability at Private, Self-Insured Firms: A Study of Earnings Loss, Replacement and Return to Work for Workers’Compensation Claimants, MR-1268-ICJ, 2000. ...................................................................................... 38


R. T. Reville, S. Seabury, and F. Neuhauser, Evaluation of California’s PermanentDisability Rating Schedule: Interim Report, DB-443-ICJ. 2003. ................................................................ 79

Rolph, E. S., “Framing the Compensation Inquiry,” RP-115, 1992. (Reprinted from theCardozo Law Review, Vol. 13, No. 6, April 1992.)................................................................................. 86


Studdert, D. M., L. A. Fritz, and T. A. Brennan, “The Jury Is Still In: Florida’s Birth-Related Neurological Injury Compensation Plan After a Decade,” RP-886-ICJ, 2002.(Reprinted from Journal of Health Politics, Policy and Law, Vol. 25, No. 3, June 2000................................ 98




———, Inflation in Hospital Charges: Implications for the California Workers’ CompensationProgram, CT-202-ICJ, 2003................................................................................................................ 81

Dispute Resolution

Alternative Dispute Resolution

Adler, J. W., D. R. Hensler, and C. E. Nelson, with the assistance of G. J. Rest, SimpleJustice: How Litigants Fare in the Pittsburgh Court Arbitration Program, R-3071-ICJ, 1983.......................... 50

Bryant, D. L., Judicial Arbitration in California: An Update, N-2909-ICJ, 1989. ......................................... 64

Ebener, P. A., and D. R. Betancourt, Court-Annexed Arbitration: The National Picture,N-2257-ICJ, 1985. ............................................................................................................................ 62

Hensler, D. R., Court-Annexed Arbitration in the State Trial Court System, P-6963-ICJ,1984. (Testimony before the Judiciary Committee Subcommittee on Courts, UnitedStates Senate, February 1984.) .......................................................................................................... 67

———, Reforming the Civil Litigation Process: How Court Arbitration Can Help, P-7027-ICJ,1984. (Reprinted from the New Jersey Bell Journal, August 1984.)......................................................... 67

———, What We Know and Don’t Know About Court-Administered Arbitration, N-2444-ICJ, 1986......................................................................................................................................... 62

Subject Index 15

January 2005

———, “Court-Ordered Arbitration: An Alternative View,” RP-103, 1992. (Reprintedfrom The University of Chicago Legal Forum, Vol. 1990, 1990.) ............................................................... 84

———, “Science in the Court: Is There a Role for Alternative Dispute Resolution?”RP-109, 1992. (Reprinted from Law and Contemporary Problems, Vol. 54, No. 3, Summer1991.) ............................................................................................................................................ 85

———, “Does ADR Really Save Money? The Jury’s Still Out,” RP-327, 1994. (Reprintedfrom The National Law Journal, April 11, 1994.)................................................................................... 89

———, “A Glass Half Full, a Glass Half Empty: The Use of Alternative DisputeResolution in Mass Personal Injury Litigation,” RP-446, 1995. (Reprinted from TexasLaw Review, Vol. 73, No. 7, June 1995.) .............................................................................................. 91

———, “A Research Agenda: What We Need to Know About Court-Connected ADR,”RP-871-ICJ, 2000. (Reprinted from Dispute Resolution, Fall 1999.) ........................................................ 98

———, “ADR Research at the Crossroads,” RP-915, 2000. (Reprinted from Journal ofDispute Resolution, Vol. 2000, No. 1, 2000.) ........................................................................................ 99

———, “Our Courts, Ourselves: How the Alternative Dispute Resolution Movement IsRe-Shaping Our Legal System,” RP-1090, 2004. (Reprinted from Penn State Law Review,The Dickinson School of Law, Vol. 108, No. 1, 2003.) ......................................................................... 102

Hensler, D. R., and J. W. Adler, with the assistance of G. J. Rest, Court-AdministeredArbitration: An Alternative for Consumer Dispute Resolution, N-1965-ICJ, 1983........................................ 61

Hensler, D. R., A. J. Lipson, and E. S. Rolph, Judicial Arbitration in California: The FirstYear, R-2733-ICJ, 1981...................................................................................................................... 44

———, Judicial Arbitration in California: The First Year: Executive Summary, R-2733/1-ICJ,1981. ............................................................................................................................................ 44

Kakalik, J. S., T. Dunworth, L. A. Hill, D. McCaffrey, M. Oshiro, N. M. Pace, andM. E. Vaiana, An Evaluation of Mediation and Early Neutral Evaluation Under the CivilJustice Reform Act, MR-803-ICJ, 1996. ................................................................................................ 34

Lind, E. A., Arbitrating High-Stakes Cases: An Evaluation of Court-Annexed Arbitration in aUnited States District Court, R-3809-ICJ, 1990. .................................................................................... 56

Lind, E. A., R. J. MacCoun, P. A. Ebener, W. L. F. Felstiner, D. R. Hensler, J. Resnik, andT. R. Tyler, The Perception of Justice: Tort Litigants’ Views of Trial, Court-AnnexedArbitration, and Judicial Settlement Conferences, R-3708-ICJ, 1989........................................................... 56

MacCoun, R. J., “Unintended Consequences of Court Arbitration: A Cautionary Talefrom New Jersey,” RP-134, 1992. (Reprinted from The Justice System Journal, Vol. 14,No. 2, 1991.) ................................................................................................................................... 88


MacCoun, R. J., E. A. Lind, and T. R. Tyler, “Alternative Dispute Resolution in Trialand Appellate Courts,” RP-117, 1992. (Reprinted from Handbook of Psychology and Law,1992.) ............................................................................................................................................ 87

16 Subject Index

January 2005

Moller, E., E. S. Rolph, and P. Ebener, Private Dispute Resolution in the Banking Industry,MR-259-ICJ, 1993. ........................................................................................................................... 31

Resnik, J., “Many Doors? Closing Doors? Alternative Dispute Resolution andAdjudication,” RP-439, 1995. (Reprinted from The Ohio State Journal on DisputeResolution, Vol. 10, No. 2, 1995.)........................................................................................................ 91

Rolph, E. S., Introducing Court-Annexed Arbitration: A Policymaker’s Guide, R-3167-ICJ,1984. ............................................................................................................................................ 51

Rolph, E. S., and D. R. Hensler, Court-Ordered Arbitration: The California Experience,N-2186-ICJ, 1984. ............................................................................................................................ 61

Rolph, E. S., and E. Moller, Evaluating Agency Alternative Dispute Resolution Programs: A Users’ Guide to Data Collection and Use, MR-534-ACUS/ICJ, 1995. ................................................... 32

Rolph, E. S., E. Moller, and L. Petersen, Escaping the Courthouse: Private AlternativeDispute Resolution in Los Angeles, MR-472-JRHD/ICJ, 1994. ................................................................ 32

Rolph, E. S., E. Moller, and J. Rolph, “Arbitration Agreements in Health Care: Mythsand Reality,” RP-746, 1998. (Reprinted from Law and Contemporary Problems, Vol. 60,No. 1.) . .......................................................................................................................................... 94

Costs of Dispute Resolution

Dunworth, T., and J. S. Kakalik, “Preliminary Observations on Implementation of thePilot Program of the Civil Justice Reform Act of 1990,” RP-361, 1995. (Reprinted fromStanford Law Review, Vol. 46, No. 6, July 1994.) .................................................................................. 90

Hensler, D. R., “Does ADR Really Save Money? The Jury’s Still Out,” RP-327, 1994.(Reprinted from The National Law Journal, April 11, 1994.) . ................................................................ 89

Hensler, D. R., M. E. Vaiana, J. S. Kakalik, and M. A. Peterson, Trends in Tort Litigation:The Story Behind the Statistics, R-3583-ICJ, 1987. ................................................................................. 54

Kakalik, J. S., T. Dunworth, L. A. Hill, D. McCaffrey, M. Oshiro, N. M. Pace, and M. E.Vaiana, An Evaluation of Judicial Case Management Under the Civil Justice Reform Act,MR-802-ICJ, 1996. ........................................................................................................................... 34

———, An Evaluation of Mediation and Early Neutral Evaluation Under the Civil JusticeReform Act, MR-803-ICJ, 1996. .......................................................................................................... 34

———, Implementation of the Civil Justice Reform Act in Pilot and Comparison Districts,MR-801-ICJ, 1996. ........................................................................................................................... 33

———, Just, Speedy, and Inexpensive? An Evaluation of Judicial Case Management Underthe Civil Justice Reform Act, MR-800-ICJ, 1996..................................................................................... 33

———, “Just, Speedy, and Inexpensive? An Evaluation of Judicial Case ManagementUnder the Civil Justice Reform Act: A Summary,” RP-861, 1999. (Reprinted fromDispute Resolution: A System in Transition.) ........................................................................................ 97


Subject Index 17

January 2005


Kakalik, J. S., E. M. King, M. Traynor, P. A. Ebener, and L. Picus, Costs andCompensation Paid in Aviation Accident Litigation, R-3421-ICJ, 1988....................................................... 53

Kakalik, J. S., and N. M. Pace, Costs and Compensation Paid in Tort Litigation, R-3391-ICJ,1986. ............................................................................................................................................ 52

———, Costs and Compensation Paid in Tort Litigation, P-7243-ICJ, 1986. (Testimonybefore the Subcommittee on Trade, Productivity, and Economic Growth, JointEconomic Committee of the Congress, July 1986.). ............................................................................ 69

Kakalik, J. S., and A. E. Robyn, Costs of the Civil Justice System: Court Expenditures forProcessing Tort Cases, R-2888-ICJ, 1982. ............................................................................................. 46

Kakalik, J. S., and R. L. Ross, Costs of the Civil Justice System: Court Expenditures forVarious Types of Civil Cases, R-2985-ICJ, 1983 ..................................................................................... 47

Kakalik, J. S., M. Selvin, and N. M. Pace, Averting Gridlock: Strategies for Reducing CivilDelay in the Los Angeles Superior Court, R-3762-ICJ, 1990 ..................................................................... 56

Lind, E. A., Arbitrating High-Stakes Cases: An Evaluation of Court-Annexed Arbitration in aUnited States District Court, R-3809-ICJ, 1990...................................................................................... 56

MacCoun, R. J., “Differential Treatment of Corporate Defendants by Juries: AnExamination of the ‘Deep-Pockets’ Hypothesis,” RP-607, 1997. (Reprinted from Law &Society Review, Vol. 30, No. 1, 1996.).................................................................................................. 93


Peterson, M. A., New Tools for Reducing Civil Litigation Expenses, R-3013-ICJ, 1983. ............................... 48

Priest, G. L., Regulating the Content and Volume of Litigation: An Economic Analysis,R-3084-ICJ, 1983.............................................................................................................................. 50

Rolph, E., E. Moller, and J. Rolph, Arbitration Agreements in Health Care: Myths andReality, RP-746, 1998. (Reprinted from Law and Contemporary Problems, Vol. 60, No. 1.)......................... 94

Court Delay

Adler, J. W., W. L. F. Felstiner, D. R. Hensler, and M. A. Peterson, The Pace of Litigation:Conference Proceedings, R-2922-ICJ, 1982. ........................................................................................... 47

Dunworth, T., and J. S. Kakalik, “Preliminary Observations on Implementation of thePilot Program of the Civil Justice Reform Act of 1990,” RP-361, 1995. (Reprinted fromStanford Law Review, Vol. 46, No. 6, July 1994.) .................................................................................. 90

Dunworth, T., and N. M. Pace, Statistical Overview of Civil Litigation in the FederalCourts, R-3885-ICJ, 1990................................................................................................................... 57

Ebener, P. A., J. Wilson-Adler, M. Selvin, and M. S. Yeasley, Court Efforts to ReducePretrial Delay: A National Inventory, R-2732-ICJ, 1981. ......................................................................... 44

18 Subject Index

January 2005

———, Court Efforts to Reduce Pretrial Delay: A National Inventory: Executive Summary,R-2732/1-ICJ, 1981. ......................................................................................................................... 44

Kakalik, J. S., “Analyzing Discovery Management Policies: RAND Sheds New Light onthe Civil Justice Reform Act Evaluation Data,” RP-714, 1998. (Reprinted from Judges’Journal, Spring 1998.)....................................................................................................................... 94

———, “Just, Speedy, and Inexpensive? Judicial Case Management Under the CivilJustice Reform Act,” RP-635, 1997. (Reprinted from Judicature, Vol. 80, No. 4,January–February 1997, pp. 184–189.)............................................................................................... 93

Kakalik, J. S., T. Dunworth, L. A. Hill, D. McCaffrey, M. Oshiro, N. M. Pace, and M. E.Vaiana, An Evaluation of Judicial Case Management Under the Civil Justice Reform Act,MR-802-ICJ, 1996. .......................................................................................................................... 34

———, An Evaluation of Mediation and Early Neutral Evaluation Under the Civil JusticeReform Act, MR-803-ICJ, 1996. .......................................................................................................... 34

———, Implementation of the Civil Justice Reform Act in Pilot and Comparison Districts,MR-801-ICJ, 1996. ........................................................................................................................... 33

———, Just, Speedy, and Inexpensive? An Evaluation of Judicial Case Management Underthe Civil Justice Reform Act, MR-800-ICJ, 1996..................................................................................... 33

———, “Just, Speedy, and Inexpensive? An Evaluation of Judicial Case ManagementUnder the Civil Justice Reform Act: A Summary,” RP-861, (Reprinted from DisputeResolution: System in Transition.) 1999. ............................................................................................... 97

Kakalik, J. S., D. R. Hensler, D. McCaffrey, M. Oshiro, N. M. Pace, and M. E. Vaiana,Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data,MR-941-ICJ, 1998. ........................................................................................................................... 35

Kakalik, J. S., M. Selvin, and N. M. Pace, Averting Gridlock: Strategies for Reducing CivilDelay in the Los Angeles Superior Court, R-3762-ICJ, 1990. .................................................................... 56

———, Strategies for Reducing Civil Delay in the Los Angeles Superior Court: TechnicalAppendixes, N-2988-ICJ, 1990............................................................................................................ 64

Lind, E. A., Arbitrating High-Stakes Cases: An Evaluation of Court-Annexed Arbitration in aUnited States District Court, R-3809-ICJ, 1990. .................................................................................... 56


Resnik, J., “Managerial Judges,” R-3002-ICJ, 1982.............................................................................. 47

Rolph, E., E. Moller, and J. Rolph, “Arbitration Agreements in Health Care: Myths andReality,” RP-746, 1998. (Reprinted from Law and Contemporary Problems, Vol. 60, No. 1.) ...................... 94

Selvin, M., and P. A. Ebener, Managing the Unmanageable: A History of Civil Delay in theLos Angeles Superior Court, R-3165-ICJ, 1984....................................................................................... 51

Subject Index 19

January 2005

Special Issues

Hensler, D. R., “Do We Need an Empirical Research Agenda on JudicialIndependence?” RP-808, 1999. (Reprinted from Southern California Law Review, Vol. 72,Nos. 2 & 3, January/March 1999.) .................................................................................................... 95


Kritzer, H. M., W. L. F. Felstiner, A. Sarat, and D. M. Trubek, The Impact of FeeArrangement on Lawyer Effort, P-7180-ICJ, 1986................................................................................... 68

Priest, G. L., Regulating the Content and Volume of Litigation: An Economic Analysis,R-3084-ICJ, 1983.............................................................................................................................. 50

Priest, G. L., and B. Klein, The Selection of Disputes for Litigation, R-3032-ICJ, 1984................................. 49

Resnik, J., “Managerial Judges,” R-3002-ICJ, 1982.............................................................................. 47

———, “Failing Faith: Adjudicatory Procedure in Decline,” P-7272-ICJ, 1987.(Reprinted from the University of Chicago Law Review, Vol. 53, No. 2, 1986.) ......................................... 69

———, “Due Process: A Public Dimension,” P-7418-ICJ, 1988. (Reprinted from theUniversity of Florida Law Review, Vol. 39, No. 2, 1987.) ........................................................................ 70

———, “Judging Consent,” P-7419-ICJ, 1988. (Reprinted from the University of ChicagoLegal Forum, Vol. 1987.) .................................................................................................................... 70

———, “From ‘Cases’ to ‘Litigation,’” RP-110, 1992. (Reprinted from Law andContemporary Problems, Vol. 54, No. 3, Summer 1991.)........................................................................ 85

———, “Whose Judgment? Vacating Judgments, Preferences for Settlement, and theRole of Adjudication at the Close of the Twentieth Century,” RP-364, 1995. (Reprintedfrom UCLA Law Review, Vol. 41, No. 6, August 1994.)........................................................................ 90

Waterman, D. A., and M. A. Peterson, Models of Legal Decisionmaking, R-2717-ICJ, 1981........................ 44

———, Evaluating Civil Claims: An Expert Systems Approach, P-7073-ICJ, March 1985............................ 67

Economic Effects of the Liability System

General

Carroll, S. J., A. Abrahamse, M. S. Marquis, and M. E. Vaiana, Liability System Incentivesto Consume Excess Medical Care, DRU-1264-ICJ, 1995. ......................................................................... 82

Hensler, D. R., “Taking Aim at the American Legal System: The Council onCompetitiveness’s Agenda for Legal Reform,” RP-113, 1992. (Reprinted fromJudicature, Vol. 75, No. 5, February–March 1992.)............................................................................... 86

Johnson, L. L., Cost-Benefit Analysis and Voluntary Safety Standards for ConsumerProducts, R-2882-ICJ, 1982. ............................................................................................................... 46

20 Subject Index

January 2005

MacCoun, R. J., “Differential Treatment of Corporate Defendants by Juries: AnExamination of the ‘Deep-Pockets’ Hypothesis,” RP-607, 1997. (Reprinted from Law &Society Review, Vol. 30, No. 1, 1996.) ................................................................................................. 93

Marquis, M. S., and W. G. Manning, “Lifetime Costs and Compensation for Injuries,”RP-858, 1999. (Reprinted from Inquiry, Vol. 36, No. 3)........................................................................ 97

Reuter, P., The Economic Consequences of Expanded Corporate Liability: An ExploratoryStudy, N-2807-ICJ, 1988. .................................................................................................................. 63

Law and the Changing American Workplace




Dertouzos, J. N., and L. A. Karoly, Labor-Market Responses to Employer Liability, R-3989-ICJ, 1992......................................................................................................................................... 58


———, Assessment of 24-Hour Care Options for California, WR-163-1-ICJ, 2004. ..................................... 76

Marquis, M. S., Economic Consequences of Work-Related Injuries, CT-103, 1992........................................ 80

Pace, N. M., R. T. Reville, L. Galway, A. B. Geller, O. Hayden, L. A. Hill, C. Mardesich,F. W. Neuhauser, S. Polich, and J. Yeom, Improving Dispute Resolution for California’sInjured Workers, MR-1425-ICJ, 2003................................................................................................... 39

Pace, N. M., R. T. Reville, L. Galway, A. B. Geller, O. Hayden, L. A. Hill, C. Mardesich,F. W. Neuhauser, S. Polich, J. Yeom, and L. Zakaras, Improving Dispute Resolution forCalifornia’s Injured Workers: Executive Report, MR-1425/1-ICJ, 2003...................................................... 40

Peterson, M. A., R. T. Reville, and R. K. Stern, with P. Barth, Compensating PermanentWorkplace Injuries: A Study of the California System, MR-920-ICJ, 1997................................................... 35

Reville, R. T., “The Impact of a Disabling Workplace Injury on Earnings and LaborForce Participation,” RP-921, 2000. (Reprinted from J. C. Haltiwanger et al., eds., TheCreation and Analysis of Employer-Employee Matched Data, Elsevier, 1999.)............................................. 100

Reville, R. T., J. Bhattacharya, and L. R. Sager Weinstein, “New Methods and DataSources for Measuring Economic Consequences of Workplace Injuries,” RP-972-ICJ,2002. (Reprinted from American Journal of Industrial Medicine, Vol. 40, No. 4, October2001.) ............................................................................................................................................ 100

Subject Index 21

January 2005


Reville, R. T., S. Polich, S. Seabury, and E. Giddens, Permanent Disability at Private, Self-Insured Firms: A Study of Earnings Loss, Replacement and Return to Work for Workers’Compensation Claimants, MR-1268-ICJ, 2000. ...................................................................................... 38


Reville, R. T., S. Seabury, and F. Neuhauser, Evaluation of California’s PermanentDisability Rating Schedule: Interim Report, DB-443-ICJ, 2003. ................................................................ 79



Studdert, D. M., W. M. Sage, C. R. Gresenz, and D. R. Hensler, “Expanded ManagedCare Liability: What Impact on Employer Coverage?” RP-860, 2000. (Reprinted fromHealth Affairs, Vol. 18, No. 6, November/December 1999.) ................................................................. 97





Product Liability


Dunworth, T., Product Liability and the Business Sector: Litigation Trends in Federal Courts,R-3668-ICJ, 1988.............................................................................................................................. 55

Eads, G., and P. Reuter, Designing Safer Products: Corporate Responses to Product LiabilityLaw and Regulation, R-3022-ICJ, 1983................................................................................................. 48

———, “Designing Safer Products: Corporate Responses to Product Liability Law andRegulation,” P-7089-ICJ, 1985. (Reprinted from Journal of Product Liability, Vol. 7, 1985.) ...................... 67


22 Subject Index

January 2005


Garber, S., and A. G. Bower, “Newspaper Coverage of Automotive Product LiabilityVerdicts,” RP-809, 1999 (Reprinted from Law & Society Review, Vol. 33, No. 1, 1999). ........................... 95

Hensler, D. R., Summary of Research Results on Product Liability, P-7271-ICJ, 1986.(Testimony to the Committee on the Judiciary, United States Senate, October 1986.)............................ 69

———, What We Know and Don’t Know About Product Liability, P-7775-ICJ, 1993.(Testimony to the Commerce Committee, United States Senate, September 1991.)............................... 71

Peterson, M. A., Civil Juries in the 1980s: Trends in Jury Trials and Verdicts in Californiaand Cook County, Illinois, R-3466-ICJ, 1987. ........................................................................................ 53

Terrorism




Mass Torts and Class Actions


Hensler, D. R., “Resolving Mass Toxic Torts: Myths and Realities,” P-7631-ICJ, 1990.(Reprinted from the University of Illinois Law Review, Vol. 1989, No. 1.) ............................................... 71

———, Asbestos Litigation in the United States: A Brief Overview, P-7776-ICJ, 1992.(Testimony before the Courts and Judicial Administration Subcommittee, UnitedStates House Judiciary Committee, October 1991.). ........................................................................... 71


———, “Fashioning a National Resolution of Asbestos Personal Injury Litigation: AReply to Professor Brickman,” RP-114, 1992. (Reprinted from Cardozo Law Review, Vol.13, No. 6, April 1992.)...................................................................................................................... 86


———, “Revisiting the Monster: New Myths and Realities of Class Action and OtherLarge Scale Litigation,” RP-979-ICJ, 2002. (Reprinted from Duke Journal of Comparative& International Law, Vol. 11, No. 2, 2001.) .......................................................................................... 101

Subject Index 23

January 2005

Hensler, D. R., S. Carroll, M. White, and J. Gross, Asbestos Litigation in the U.S.: A NewLook at an Old Issue, DB-362.0-ICJ, 2001. ............................................................................................ 78

Hensler, D. R., W. L. F. Felstiner, M. Selvin, and P. A. Ebener, Asbestos in the Courts: TheChallenge of Mass Toxic Torts, R-3324-ICJ, 1985. .................................................................................. 52

Hensler, D. R., J. Gross, E. Moller, and N. Pace, Preliminary Results of the RAND Study ofClass Action Litigation, DB-220-ICJ, 1997. ........................................................................................... 78

Hensler, D. R., N. M. Pace, B. Dombey-Moore, B. Giddens, J. Gross, and E. K. Moller,Class Action Dilemmas: Pursuing Public Goals for Private Gain: Executive Summary,MR-969/1-ICJ, 1999......................................................................................................................... 36

———, Class Action Dilemmas: Pursuing Public Goals for Private Gain, MR-969-ICJ, 2000. ....................... 35

Hensler, D. R., and M. A. Peterson, “Understanding Mass Personal Injury Litigation: ASocio-Legal Analysis,” RP-311, 1994. (Reprinted from Brooklyn Law Review, Vol. 59, No.3, Fall 1993.) ................................................................................................................................... 89

Hensler, D. R., and T. D. Rowe, Jr., “Beyond ‘It Just Ain’t Worth It’: AlternativeStrategies for Damage Class Action Reform,” RP-951, 2001. (Reprinted from Law andContemporary Problems, Vol. 64, Spring/Summer 2001, Duke University School of Law,Durham, North Carolina.) ............................................................................................................... 100



Peterson, M. A., “Giving Away Money: Comparative Comments on Claims ResolutionFacilities,” RP-108, 1992. (Reprinted from Law and Contemporary Problems, Vol. 53, No.4, Autumn 1990.) ............................................................................................................................ 84


———, “Mass Justice: The Limited and Unlimited Power of Courts,” RP-116, 1992.(Reprinted from Law and Contemporary Problems, Vol. 54, No. 3, Summer 1991.)................................... 87

Resnik, J., D. E. Curtis, and D. R. Hensler, “Individuals Within the Aggregate:Relationships, Representation, and Fees,” RP-584, 1996. (Reprinted from New YorkUniversity Law Review, Vol. 71, Nos. 1–2, April–May 1996.) ................................................................ 92


Outcomes

General

Carroll, S. J., with N. M. Pace, Assessing the Effects of Tort Reforms, R-3554-ICJ, 1987.............................. 54

24 Subject Index

January 2005

Galanter, M., B. Garth, D. Hensler, and F. K. Zemans, “How to Improve Civil JusticePolicy,” RP-282. (Reprinted from Judicature, Vol. 77, No. 4, January/February 1994.)........................... 89

Garber, S., and J. Adams, “Product and Stock Market Responses to AutomotiveProduct Liability Verdicts,” RP-794, 1999. (Reprinted from M. Baily, P. Reiss, and C.Winston, eds., Brookings Papers on Economic Activity: Microeconomics 1998). ......................................... 95

Hensler, D. R., Summary of Research Results on the Tort Liability System, P-7210-ICJ, 1986.(Testimony before the Committee on Commerce, Science, and Transportation, UnitedStates Senate, February 1986.) .......................................................................................................... 68

———, Trends in California Tort Liability Litigation, P-7287-ICJ, 1987. (Testimony beforethe Select Committee on Insurance, California State Assembly, October 1987.).................................... 70

———, “Researching Civil Justice: Problems and Pitfalls,” P-7604-ICJ, 1988. (Reprintedfrom Law and Contemporary Problems, Vol. 51, No. 3, Summer 1988.) .................................................... 71

———, “Reading the Tort Litigation Tea Leaves: What’s Going on in the Civil LiabilitySystem?” RP-226. (Reprinted from The Justice System Journal, Vol. 16, No. 2, 1993.) .............................. 88

———, “Why We Don’t Know More About the Civil Justice System—and What WeCould Do About It,” RP-363, 1995. (Reprinted from USC Law, Fall 1994.)............................................ 90


Hensler, D. R., and E. Moller, Trends in Punitive Damages: Preliminary Data from CookCounty, Illinois, and San Francisco, California, DRU-1014-ICJ, 1995. ....................................................... 82

Hensler, D. R., N. M. Pace, B. Dombey-Moore, B. Giddens, J. Gross, and E. K. Moller,Class Action Dilemmas: Pursuing Public Goals for Private Gain: Executive Summary,MR-969/1-ICJ, 1999......................................................................................................................... 36

Hensler, D. R., and T. D. Rowe, Jr., “Beyond ‘It Just Ain’t Worth It’: AlternativeStrategies for Damage Class Action Reform,” RP-951, 2001. (Reprinted from Law andContemporary Problems, Vol. 64, Spring/Summer 2001, Duke University School of Law,Durham, North Carolina.) ............................................................................................................... 100


Hill, P. T., and D. L. Madey, Educational Policymaking Through the Civil Justice System,R-2904-ICJ, 1982.............................................................................................................................. 46

Lipson, A. J., California Enacts Prejudgment Interest: A Case Study of Legislative Action,N-2096-ICJ, 1984. ............................................................................................................................ 61

Moller, E., Trends in Punitive Damages: Preliminary Data from California,DRU-1059-ICJ, 1995......................................................................................................................... 82

Shubert, G. H., Changes in the Tort System: Helping Inform the Policy Debate, P-7241-ICJ,1986. ............................................................................................................................................ 69

———, Some Observations on the Need for Tort Reform, P-7189-ICJ, 1986. (Testimonybefore the National Conference of State Legislatures, January 1986.) .................................................. 68

Subject Index 25

January 2005

Jury Verdicts


Bailis, D. S., and R. J. MacCoun, “Estimating Liability Risks with the Media as YourGuide,” RP-606, 1996. (Reprinted from Law and Human Behavior, Vol. 20, No. 4, 1996,pp. 419–429.).................................................................................................................................. 92

Carroll, S. J., Jury Awards and Prejudgment Interest in Tort Cases, N-1994-ICJ, 1983................................. 61

———, Punitive Damages in Financial Injury Jury Verdicts, CT-143, June 1997. (Writtenstatement delivered on June 24, 1997, to the Judiciary Committee of the United StatesSenate.) .......................................................................................................................................... 81

Chin, A., and M. A. Peterson, Deep Pockets, Empty Pockets: Who Wins in Cook County JuryTrials, R-3249-ICJ, 1985. ................................................................................................................... 51




MacCoun, R. J., Getting Inside the Black Box: Toward a Better Understanding of Civil JuryBehavior, N-2671-ICJ, 1987................................................................................................................ 63

———, “Experimental Research on Jury Decisionmaking,” R-3832-ICJ, 1989.(Reprinted from Science, Vol. 244, June 1989.).................................................................................... 57

———, “Blaming Others to a Fault?” RP-286. (Reprinted from Chance, Vol. 6, No. 4,Fall 1993.)....................................................................................................................................... 89

———, “Inside the Black Box: What Empirical Research Tells Us AboutDecisionmaking by Civil Juries,” RP-238, 1993. (Reprinted from Robert E. Litan, ed.,Verdict: Assessing the Civil Jury System, The Brookings Institution, 1993.) ............................................. 88

———, Is There a “Deep-Pocket” Bias in the Tort System? IP-130, October 1993....................................... 73

———, Improving Jury Comprehension in Criminal and Civil Trials, CT-136, July 1995. ............................ 80

Moller, E., Trends in Punitive Damages: Preliminary Data from California, DRU-1059-ICJ,1995. ............................................................................................................................................ 82

———, Trends in Civil Jury Verdicts Since 1985, MR-694-ICJ, 1996........................................................ 32

Moller, E., N. M. Pace, and S. J. Carroll, Punitive Damages in Financial Injury JuryVerdicts, MR-888-ICJ, 1997. .............................................................................................................. 34

———, Punitive Damages in Financial Injury Jury Verdicts: Executive Summary, MR-889-ICJ, 1997......................................................................................................................................... 35

26 Subject Index

January 2005


Peterson, M. A., Compensation of Injuries: Civil Jury Verdicts in Cook County, R-3011-ICJ,1984. ............................................................................................................................................ 48

———, Punitive Damages: Preliminary Empirical Findings, N-2342-ICJ, 1985. ......................................... 62

———, Summary of Research Results: Trends and Patterns in Civil Jury Verdicts, P-7222-ICJ, 1986. (Testimony before the Subcommittee on Oversight, Committee on Ways andMeans, United States House of Representatives, March 1986.) ........................................................... 69

———, Civil Juries in the 1980s: Trends in Jury Trials and Verdicts in California and CookCounty, Illinois, R-3466-ICJ, 1987....................................................................................................... 53

Peterson, M. A., and G. L. Priest, The Civil Jury: Trends in Trials and Verdicts, CookCounty, Illinois, 1960–1979, R-2881-ICJ, 1982...................................................................................... 45

———, The Civil Jury: Trends in Trials and Verdicts, Cook County, Illinois, 1960–1979:Executive Summary, R-2881/1-ICJ, 1982. ............................................................................................ 46

Peterson, M. A., S. Sarma, and M. G. Shanley, Punitive Damages: Empirical Findings,R-3311-ICJ, 1987.............................................................................................................................. 52


Shanley, M. G., and M. A. Peterson, Comparative Justice: Civil Jury Verdicts in SanFrancisco and Cook Counties, 1959–1980, R-3006-ICJ, 1983 .................................................................... 48

———, Posttrial Adjustments to Jury Awards, R-3511-ICJ, 1987. ............................................................ 53

Punitive Damages

Anderson, M. C., and R. J. MacCoun, “Goal Conflict in Juror Assessments ofCompensatory and Punitive Damages,” RP-830, 1999. (Reprinted from Law and HumanBehavior, Vol. 23, No. 3.) .................................................................................................................. 96

Carroll, S. J., Punitive Damages in Financial Injury Jury Verdicts, CT-143, June 1997.(Written statement delivered on June 24, 1997, to the Judiciary Committee of theUnited States Senate.)...................................................................................................................... 81



———, “Punitive Damages and Deterrence of Efficiency-Promoting Analysis: AProblem Without a Solution,” RP-920, 2000. (Reprinted from Stanford Law Review, Vol.52, No. 6, July 2000.)........................................................................................................................ 99

Hensler, D. R., “Revisiting the Monster: New Myths and Realities of Class Action andOther Large Scale Litigation,” RP-979-ICJ, 2002. (Reprinted from Duke Journal ofComparative & International Law, Vol. 11, No. 2, 2001.) ........................................................................ 101

Subject Index 27

January 2005



MacCoun, R. J., “Inside the Black Box: What Empirical Research Tells Us AboutDecisionmaking by Civil Juries,” RP-238, 1993. (Reprinted from Robert E. Litan, ed.,Verdict: Assessing the Civil Jury System, The Brookings Institution, 1993.) ............................................. 88

Martin, J. W., Jr., Establishing a Good-Faith Defense to Punitive-Damage Claims, P-8048,2000. ............................................................................................................................................ 72





Moller, E., E. S. Rolph, and P. Ebener, Private Dispute Resolution in the Banking Industry,MR-259-ICJ, 1993. ........................................................................................................................... 31

Peterson, M. A., Punitive Damages: Preliminary Empirical Findings, N-2342-ICJ, 1985.............................. 62

Peterson, M. A., S. Sarma, and M. G. Shanley, Punitive Damages: Empirical Findings,R-3311-ICJ, 1987.............................................................................................................................. 52


Shubert, G. H., Some Observations on the Need for Tort Reform, P-7189-ICJ, 1986.(Testimony before the National Conference of State Legislatures, January 1986.)................................. 68

Special Studies

Hensler, D. R., and M. E. Reddy, California Lawyers View the Future: A Report to theCommission on the Future of the Legal Profession and the State Bar, MR-528-ICJ, 1994................................ 32

Trends in the Tort Litigation System


Carroll, S. J., Punitive Damages in Financial Injury Jury Verdicts, CT-143, June 1997.(Written statement delivered on June 24, 1997, to the Judiciary Committee of theUnited States Senate.)...................................................................................................................... 81

28 Subject Index

January 2005

Demaine, L. J., and A. X. Fellmeth, “Reinventing the Double Helix: A Novel andNonobvious Reconceptualization of the Biotechnology Patent,” RP-1049-ICJ. 2003.(Reprinted from Stanford Law Review, Vol. 55, No. 303, November 2002).............................................. 101

Dixon, L. J., and B. Gill, Changes in the Standards for Admitting Expert Evidence in FederalCivil Cases Since the Daubert Decision, MR-1439-ICJ, 2001. .................................................................. 40

Galanter, M., B. Garth, D. Hensler, and F. K. Zemans, “How to Improve Civil JusticePolicy,” RP-282. (Reprinted from Judicature, Vol. 77, No. 4, January/February 1994.)........................... 89

Gresenz, C. R., D. R. Hensler, D. M. Studdert, B. Dombey-Moore, and N. M. Pace, AFlood of Litigation? Predicting the Consequences of Changing Legal Remedies Available toERISA Beneficiaries, IP-184, 1999. ...................................................................................................... 74


———, Trends in California Tort Liability Litigation, P-7287-ICJ, 1987. (Testimony beforethe Select Committee on Insurance, California State Assembly, October 1987.).................................... 70

———, Reading the Tort Litigation Tea Leaves: What’s Going on in the Civil LiabilitySystem? RP-226. (Reprinted from The Justice System Journal, Vol. 16, No. 2, 1993.)................................. 88


———, “The Real World of Tort Litigation,” RP-702, 1998. (Reprinted from A. Sarat etal., eds., Everyday Practices and Trouble Cases, Northwestern University Press, 1998). ............................ 93





Merz, J. F., and N. M. Pace, “Trends in Patent Litigation: The Apparent Influence ofStrengthened Patents Attributable to the Court of Appeals for the Federal Circuit,” RP-426, 1995. (Reprinted from Journal of the Patent and Trademark Office Society, Vol. 76, No.8, August 1994.).............................................................................................................................. 91



Subject Index 29

January 2005



O’Connell, J., S. Carroll, A. Abrahamse, M. Horowitz, and A. Karan. “The Effect ofAllowing Motorists to Opt Out of Tort Law in the United States,” RP-745, 1998.(Reprinted from La Cahiers du Droit, Vol. 471, 1998.) .......................................................................... 94

Peterson, M. A., Summary of Research Results: Trends and Patterns in Civil Jury Verdicts,P-7222-ICJ, 1986. (Testimony before the Subcommittee on Oversight, Committee onWays and Means, United States House of Representatives, March 1986.)............................................ 69

———, Civil Juries in the 1980s: Trends in Jury Trials and Verdicts in California and CookCounty, Illinois, R-3466-ICJ, 1987....................................................................................................... 53

Peterson, M. A., and G. L. Priest, The Civil Jury: Trends in Trials and Verdicts, CookCounty, Illinois, 1960–1979, R-2881-ICJ, 1982...................................................................................... 45

Studdert, D. M. “Legal Issues in the Delivery of Alternative Medicine,” RP-862, 1999.(Reprinted from JAMWA, Vol. 54, No. 4). ......................................................................................... 97

31

January 2005

ABSTRACTS

MONOGRAPH/REPORTS

MR-204-EPA/RC—Private-Sector CleanupExpenditures and Transaction Costs at 18Superfund Sites. L. S. Dixon, D. S. Drezner, J. K.Hammitt, 1993.

This report estimates the transaction-cost sharefor 108 firms with annual revenues of less than$20 billion between 1981 and 1991 for 18 sites onthe National Priority List—the worst sites tobe cleaned up by the Superfund program.(Transaction costs are expenditures for litigationand negotiation; the transaction cost share is theratio of transaction costs to the sum of transactioncost and cleanup costs.) The study estimatesthat private-sector firms spent an average of$32 million per site at the 18 study sites between1981 and 1991 and that the average transaction-cost share was 32 percent. The small size of thesample introduced considerable uncertainty intothese estimates. Transaction cost shares werehigher for smaller firms because they tend to havea smaller volume of waste at the site. Sixty-fivepercent of the transaction costs were for legalwork; many firms spent money on coveragedispute with their insurers, but few receivedreimbursement. Trans-action costs were higherat sites with higher estimated total cleanup costs.86 pages. Bibliography.

MR-259-ICJ—Private Dispute Resolution in theBanking Industry. E. Moller, E. Rolph, P. A.Ebener. 1993.

This report examines the use of private alternativedispute resolution (private ADR) by firms in thebanking industry in response to a perceivedliability crisis in the 1980s. The firms initiallytested a procedure with which they were familiar,contractual arbitration provisions, in thosecontracts that were the source of the greatestliability concern and the most litigation cost. The

firms stated that they were most interested inreducing the likelihood of punitive damages andeliminating the unpredictability of juries.Interviews indicate satisfaction with the privateADR program. Data collected from one firm showthat the number of new cases filed against thatfirm in those areas, and the expected liability fromthose cases, declined after the introduction of theprovisions. However, the actual funds paid forverdicts and settlements in those areas increased.Despite these conflicting results, the futureappears to be bright for private ADR in thisindustry. 47 pages. Bibliography.

MR-455-ICJ—Fixing Superfund: The Effect of theProposed Superfund Reform Act of 1994 onTransaction Costs. L. S. Dixon. 1994.

This report focuses on the possible effect of theproposed Superfund Reform Act of 1994 on trans-action costs—costs resulting not from cleanup butfrom assigning liability for cleanup among thevarious parties. The analysis is based on previouswork on transaction costs performed at RAND,and on telephone interviews with various stake-holders in the Superfund process. Stakeholdersinterviewed include representatives of large andsmall potentially responsible parties, insurers,reinsurers, the Environmental Protection Agency,the Department of the Treasury, environmentalgroups, and researchers. Because of its focus ontransaction costs, this report does not addressother important effects of the proposed legislation.For example, it does not discuss the effect of theproposed reforms on the EPA’s budget or on therelationship between the cost of Superfundcleanups and the benefits to human health andthe environment from cleanups. 102 pages.Bibliography.

32 Monograph/Reports

January 2005

MR-472-JRHD/ICJ—Escaping the Courthouse:Private Alternative Dispute Resolution in LosAngeles. E. Rolph, E. Moller, L. Petersen.1994.

This study profiles private alternative disputeresolution (ADR) in Los Angeles. The studyfocused on all civil money suits in Los Angelescounty in 1992 and 1993. Data came frominterviews with six of the most active private ADRorganizations, a survey of third-party neutralsoffering services, and the Los Angeles CountySuperior Court case records. The study found thatprivate ADR is a small, but growing, segment ofthe Los Angeles market and has the potential toreduce court workload. Private ADR is attractingsubstantial numbers of judges at retirement age.Because nearly half of the private ADR cases areautomobile personal injury disputes, private ADRis probably not currently reducing the courts’ability to set precedents through the publicdecision process. Providers of ADR services havesubstantial training and experience. Private ADRis serving individuals, business, and especiallyinsurers. Most private ADR users choosearbitration, but mediation is receiving anincreasing number of disputes. 63 pages.Bibliography.

MR-528-ICJ—California Lawyers View theFuture: A Report to the Commission on the Futureof the Legal Profession and the State Bar. D. R.Hensler, M. E. Reddy. 1994.

The results of a survey of members of theCalifornia bar, conducted by the ICJ at the requestof the Commission on the Future of the LegalProfession, are provided in this report. TheCommission was established in 1993 to identifythe key factors that will influence the delivery oflegal services and the administration of justiceover the next 25 years, develop a vision of theCalifornia legal profession of the future, andrecommend to the State Bar of California’s Boardof Governors how best to meet the future needs ofthe public and the profession. The ICJ surveyasked State Bar members how they view thecurrent state of the legal profession, what changesthey expect to see in the future, and how the Bar

can help the profession serve the public, now andin the future. 63 pages. Bibliography.

MR-534-ACUS/ICJ—Evaluating Agency ADRPrograms: A User’s Guide to Data Collection andUse. E. Moller, E. Rolph. 1995.

The Administrative Conference of the UnitedStates asked the Institute for Civil Justice toprepare a manual and develop prototype datacollection instruments to assist those withresponsibility for evaluating federal agencyalternative dispute resolution programs. Themanual discusses issues in designing evaluations,lays out approaches to data collection, providessample data analysis plans, and includes a numberof prototype data collection instruments. 93 pages.Bibliography.

MR-540-ICJ—The Effects of a Choice AutoInsurance Plan on Insurance Costs. A. Abrahamse,S. J. Carroll. 1995.

Choice auto insurance would let drivers choosebetween traditional auto insurance and a no-faultplan. This report estimates how choice autoinsurance would affect auto insurance costs ineach state. The authors analyze the cost effects of achoice between tort and absolute no-fault in eachof the states that now rely on the traditional tortsystem. (Absolute no-fault means that motoristsneither recover nor are liable for noneconomicloss for any auto accident injury). For statesthat already have some form of no-fault autoinsurance, the authors consider a plan offering achoice between the state’s current no-fault planand absolute no-fault. Key findings state thatif insurance premiums are proportional tocompensation costs, drivers who choose absoluteno-fault should save about 60 percent on theirpremiums for personal injury coverage. The planwill have little effect on drivers who opt forcoverage under their state’s current system. 55pages. Bibliography.

MR-694-ICJ—Trends in Civil Jury Verdicts Since1985. E. Moller. 1996.

This report describes all civil jury verdicts reachedfrom 1985 to 1994 in the state courts of generaljurisdiction in 15 jurisdictions across the nation

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and identifies trends in these verdicts. Severaldescriptive measures are used, including numberof verdicts, number of verdicts within differentcase types, percentage of cases in which theplaintiff is successful, award amounts (typical,maximum, and expected awards), variation inawards, and the occurrence and size of punitivedamage awards. The study finds that trial ratesare generally flat or decreasing; case mix has notchanged significantly in the past ten years; awardamounts are generally increasing; and punitivedamage awards are rare, but their amountsincreased dramatically between 1985 and 1989 andbetween 1990 and 1994. Jury verdicts can providevaluable information about the signals thatattorneys and potential claimants receive from thecivil justice system, but the report cautions thatthose verdicts reveal little about the underlyingdynamics of jury behavior. 84 pages. Bibliography.

MR-695-ICJ—California’s Ozone-ReductionStrategy for Light-Duty Vehicles: Direct Costs,Direct Emission Effects, and Market Responses.L. S. Dixon, S. Garber. 1996.

Economic costs and environmental effects areanalyzed for California’s multi-pronged strategyfor reducing emissions from passenger cars andlight-duty trucks, vehicles that are believed toaccount for a substantial fraction of ozone-producing emissions across the state. The studyanalyzes costs, effects on emissions, effects onvehicle markets, and the distribution of costs forenforcing regulations. These regulations includethose concerning new gasoline-powered vehiclesonly, other regulations affecting both new andexisting gasoline-powered vehicles, and also theextremely controversial zero-emission vehiclemandate. The study considers policy choice in theface of extreme uncertainty about the effects ofseveral policy elements, particularly the scrappageprogram, enhanced vehicle inspection andmaintenance, on-board emission diagnosticsystems, and the zero-emission vehicle mandate.Although the zero-emission vehicle mandateposes major economic and environmental risks,there are also major risks to repealing the mandatealtogether. The study concludes by suggestingprinciples for creating a zero-emission vehicle

policy in the face of extreme uncertainty about thedevelopment of technology for battery-poweredelectric vehicles and the future effectiveness ofpolicies to control emissions from gasolinevehicles. See also MR-695/1-ICJ. 476 pages.Bibliography.

MR-695/1-ICJ—California’s Ozone-ReductionStrategy for Light-Duty Vehicles: An EconomicAssessment. L. S. Dixon, S. Garber, M. Vaiana.1996.

This report is an executive summary of MR-695-ICJ. 60 pages. Bibliography.

MR-800-ICJ—Just, Speedy, and Inexpensive? AnEvaluation of Judicial Case Management Underthe Civil Justice Reform Act. J. S. Kakalik, T.Dunworth, L. A. Hill, D. McCaffrey, M. Oshiro,N. M. Pace, and M. E. Vaiana. 1996.

The Civil Justice Reform Act of 1990 (CJRA)required each federal district court to develop acase management plan to reduce costs and delays.The legislation also created a pilot program to testsix principles of case management, and requiredan independent evaluation to assess their effects.This executive summary provides an overview ofthe purpose of the CJRA, the basic design of theevaluation, the key findings, and their policyimplications. Detailed results appear in three otherreports: MR-801-ICJ, which traces the stages in theimplementation of the CJRA in the study districts;MR-802-ICJ, which presents the main descriptiveand statistical evaluation of how the CJRA casemanagement principles implemented in the studydistricts affected cost, time to disposition, andparticipants' satisfaction and views of fairness;and MR-803-ICJ, which describes the results of anevaluation of mediation and neutral evaluationdesigned to supplement the alternative disputeresolution assessment contained in the main CJRAevaluation. 44 pages.

MR-801-ICJ—Implementation of the Civil JusticeReform Act in Pilot and Comparison Districts.J. S. Kakalik, T. Dunworth, L. A. Hill, D.McCaffrey, M. Oshiro, N. M. Pace, and M. E.Vaiana. 1996..


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The Civil Justice Reform Act of 1990 (CJRA)required each federal district court to develop acase management plan to reduce costs and delays.The legislation also created a pilot program to testsix principles of case management, and requiredan independent evaluation to assess their effects.This report is one of four documents describingthe evaluation, which was conducted by RAND’sInstitute for Civil Justice. This report traces thestages in the CJRA implementation: therecommendations of the advisory groups, theplans adopted by the districts, and the plansactually implemented. The study found that allpilot districts complied with the statutorylanguage of the act. But the amount of changevaried widely, and, in some districts, plannedchanges were not fully implemented. However,implementing the pilot plans may haveheightened the consciousness of judges andlawyers and brought about some importantimplicit shifts in their approach to casemanagement. See also MR-800-ICJ, MR-802-ICJ,and MR-803-ICJ. 263 pages. Bibliography.

MR-802-ICJ—An Evaluation of Judicial CaseManagement Under the Civil Justice Reform Act.J. S. Kakalik, T. Dunworth, L. A. Hill, D.McCaffrey, M. Oshiro, N. M. Pace, and M. E.Vaiana. 1996.

The Civil Justice Reform Act of 1990 (CJRA)required each federal district court to develop acase management plan to reduce costs and delays.The legislation also created a pilot program to testsix principles of case management, and requiredan independent evaluation to assess their effects.This report is one of four documents describingthe evaluation, which was conducted by RAND’sInstitute for Civil Justice. This report discusses theeffects of the CJRA case management principles ontime to disposition, costs, and participants’satisfaction and views of fairness. The study foundthat the CJRA’s package of case managementpolicies, as it was implemented, had little effect onany of these outcomes. However, what judges doto manage cases does matter. A package ofprocedures containing early judicial management,early setting of a trial date, and shorter time todiscovery cutoff could reduce time to disposition

by 30 percent, with no change in litigation costs,satisfaction, or perceived fairness. See also MR-800-ICJ, MR-801-ICJ, and MR-803-ICJ. 349 pages.Bibliography.

MR-803-ICJ—An Evaluation of Mediation andEarly Neutral Evaluation Under the Civil JusticeReform Act. J. S. Kakalik, T. Dunworth, L. A. Hill,D. McCaffrey, M. Oshiro, N. M Pace, and M. E.Vaiana. 1996.

The Civil Justice Reform Act of 1990 (CJRA)required each federal district court to develop acase management plan to reduce costs and delays.The legislation also created a pilot program to testsix principles of case management, and requiredan independent evaluation to assess their effects.This report is one of four documents describingthe evaluation, which was conducted by RAND’sInstitute for Civil Justice. This report provides anassessment of the effects of six different alternativedispute resolution (ADR) programs that includedmediation and early neutral evaluation. The studyfound that after litigation had begun referral toADR was not a panacea, nor was it detrimental.Neither time nor costs nor lawyer views ofsatisfaction or fairness changed significantly as aresult of referral to any of these programs;however, lawyers and litigants who participatedin the programs liked them. The only statisticallysignificant finding was that cases referred to ADRwere more likely to have a monetary outcome. Seealso MR-800-ICJ, MR-801-ICJ, and MR-802-ICJ. 455pages. Bibliography.

MR-888-ICJ—Punitive Damages in FinancialInjury Jury Verdicts. E. Moller, N. M. Pace, S. J.Carroll. 1997.

This report provides the technical details of anInstitute for Civil Justice analysis of trends andpatterns in punitive damage awards in financialinjury cases. The cases were in selectedjurisdictions during 1985 through 1994. Thejurisdictions include all state trial courts of generaljurisdiction in the states of California and NewYork; Cook County, Illinois (Chicago); the St.Louis, Missouri, metropolitan area; and HarrisCounty, Texas (Houston). These data aresupplemented by information obtained from the


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Administrative Office of the Alabama Courts forverdicts reached in that state’s trial courts ofgeneral jurisdiction during 1992 to 1997. The studyalso estimates what percentage of the financialinjury punitive awards in the database wouldhave been affected by caps of various sizes andhow the caps would have affected the totalamount of punitive damages awarded in suchcases. See also MR-889-ICJ. 84 pages.Bibliography.

MR-889-ICJ—Punitive Damages in FinancialInjury Jury Verdicts: Executive Summary. E.Moller, N. M. Pace, S. J. Carroll. 1997.

This report is an executive summary of MR-888-ICJ. 34 pages. References.

MR-919-ICJ—Findings and Recommendations onCalifornia’s Permanent Partial Disability System:Executive Summary. R. Kaganoff Stern, M. A.Peterson, R. T. Reville, M. E. Vaiana. 1997.

This report is an executive summary of MR-920-ICJ. 38 pages.

MR-920-ICJ—Compensating PermanentWorkplace Injuries: A Study of the CaliforniaSystem. M. A. Peterson, R. T. Reville, R. KaganoffStern, with P. S. Barth. 1997.

Workers in California experiencing injuries atwork that result in permanent partial disabilities(PPD) are eligible to receive compensation. Theworkers’ benefits, doctors’ and attorneys’ fees, andthe system that processes the hundreds ofthousands of annual claims cost employersbillions of dollars each year. This report evaluatesthe workers’ compensation system by examiningits efficiency and the adequacy and equity of itsbenefits, and suggests system reforms. Theauthors conducted interviews with systemparticipants and found that the system is stilltroubled by many of the same problems thatplagued it before the 1989 and 1993 reforms. Itremains overly costly, complex, and litigiouswhile delivering modest benefits. The authorsestimated the wage losses of PPD claimants in1991 through 1993, and found that even after fiveyears, the injured workers earned considerablyless than the controls. In addition, injured workers

experience considerable time out of work, not justimmediately after the injury, but also after theinitial return to work. The authors identifiedparticular problems among claims categorized bythe workers' compensation system as “minor,”which are the vast majority of claims. For thisgroup, wage-replacement rates were lowest.Reform proposals include an elective fast track tostreamline claims processing, and a revision to thedisability rating schedule to improve therelationship between wage loss and benefits paid.See also MR-919-ICJ. 228 pages. Bibliography.

MR-941-ICJ—Discovery Management: FurtherAnalysis of the Civil Justice Reform ActEvaluation Data. J. S. Kakalik, D. R. Hensler, D.McCaffrey, M. Oshiro, N. M. Pace, M. E. Vaiana.1997.

The Civil Justice Reform Act of 1990 (CJRA)required that each federal district court develop acase-management plan to reduce costs and delay.The legislation also created a pilot program to testsix principles of case management and required anindependent evaluation to assess their effects.After the main evaluation report was completed,the Advisory Committee on Civil Rules of theJudicial Conference of the United States askedRAND to conduct further analyses of the CJRAevaluation data to shed additional light ondiscovery management. The report uses bothdescriptive tabulations and statistical techniquesto assess policy effects. Management policies areevaluated when used in various combinations,such as early management combined withdiscovery plans and early scheduling of a trialdate. Subsets of types of cases or lawyers, such ashigh-complexity cases only, high-stakes casesonly, contingent-fee lawyers only, or tort casesonly, are also analyzed. For each type of case, thedata include time to disposition, lawyer satis-faction with judicial case management, lawyerviews on the fairness of judicial case management,total lawyer work hours per litigant, lawyer workhours on discovery, and the number of discoverymotions filed. 152 pages. Bibliography.

MR-969-ICJ—Class Action Dilemmas: PursuingPublic Goals for Private Gain. D. R. Hensler, N. M.


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Pace, B. Dombey-Moore, B. Giddens, J. Gross, E.K. Moller. 2000.

Class action lawsuits—allowing one or a fewplaintiffs to represent many individuals seekingredress—have long been controversial. Thecurrent controversy, centered on lawsuits formoney damages, is characterized by sharpdisagreement among stakeholders about the kindsof suits being filed, whether plaintiffs’ claims aremeritorious, and whether resolutions to classactions are fair or socially desirable. Ultimately,these concerns lead many to wonder, Are classactions worth their costs to society and tobusiness? And do they do more harm than good?To describe the landscape of current class actionlitigation for damages, elucidate its problems, andidentify solutions, ICJ conducted a study usingqualitative and quantitative research methods. Theresearchers concluded that the controversy overdamage class actions has proven intractablebecause of the deeply held but sharply contestedideological views among stakeholders.Nevertheless, many of the political antagonistsagree that class action practices meritimprovement. The authors argue that bothpractices and outcomes could be substantiallyimproved if more judges would supervise classaction litigation more actively and scrutinizeproposed settlements and fee awards morecarefully. Educating and empowering judges totake more responsibility for case outcomes, andensuring that they have the resources to do so, canhelp the civil justice system achieve a betterbalance between the public goals of class actionsand the private interests that drive them. 609pages. References. Index. See also MR-969/1.

MR-969/1-ICJ—Class Action Dilemmas: PursuingPublic Goals for Private Gain: ExecutiveSummary. D. R. Hensler, N. M. Pace, B. Giddens,B. Dombey-Moore, J. Gross, E. K. Moller.

This document is an executive summary of MR-969-ICJ. 37 pages.

MR-970-ICJ—The Effects of a Choice AutomobileInsurance Plan on Insurance Costs andCompensation: An Updated Analysis. S. J. Carroll,A. F. Abrahamse, 1998.

This report updates an earlier study (see MR-540-ICJ, based on 1987 data) in which the authorsestimated the effects of a choice automobileinsurance plan on the costs of compensating autoaccident victims if the no-fault option wasabsolute no-fault (ANF). The authors assumedthat 50 percent of the consumers who would havepurchased auto insurance under their state’scurrent system would switch to ANF under thechoice plan. The earlier study, requested by theJoint Economic Committee of the U.S. Senate andusing data from 1987, estimated how a variant ofthat plan would affect the cost of privatepassenger auto insurance if all currently insureddrivers elected the no-fault option. The presentreport uses recently obtained data for arepresentative sample of people who werecompensated for auto accident injuries in 1992.Using these data, the authors have replicated theiranalyses for 46 states. They find that the choiceplan could substantially reduce the costs ofcompensating people injured in auto accidents. 67pages. Bibliography.

MR-1122/1-ICJ—Safety in the Skies: Personneland Parties in NTSB Aviation AccidentInvestigations—Master Volume. L. P. Sarsfield,W. L. Stanley, C. C. Lebow, E. Ettedgui, G.Henning. 2000.

Recent high-profile commercial aviation mishapshave stretched the National Transportation SafetyBoard’s resources to the limit and are testing theagency’s ability to unravel the sorts of complexfailures that lead to tragic accidents. Recognizingthe enormous challenges the NTSB faces, agencyChairman Jim Hall sought a critical examinationof the NTSB’s ability to investigate majortransportation accidents, in particular commercialaviation accidents. The results of that study arecontained in this report, the most comprehensiveexamination of the workings of the NTSB in the30-year history of the agency. Adopting amultidisciplinary approach, RAND used a varietyof quantitative and qualitative research techniquesto assess the NTSB’s operations and processes.This research, conducted in RAND's Institute forCivil Justice, outlines recommendations aimed at(1) strengthening the party process, which


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involves manufacturers, operators, and others inthe determination of the probable cause of anaccident; (2) expanding the statement of causation;(3) modernizing the investigative procedures ofthe NTSB and streamlining its internal processes;(4) managing the agency’s resources and staffingmore effectively; (5) developing training oppor-tunities for NTSB staff; and (6) improving theagency’s R&D facilities. 329 pages. Bibliography.See also MR-1122-ICJ.

MR-1122-ICJ—Safety in the Skies: Personnel andParties in NTSB Aviation Accident Investigations.C. C. Lebow, L. P. Sarsfield, W. L. Stanley, E.Ettedgui, G. Henning. 1999.

This report is an executive summary ofMR-1122/1-ICJ. 56 pages.

MR-1134-ICJ—The Effects of a Choice AutomobileInsurance Plan on Insurance Costs andCompensation: An Analysis Based on 1997 Data.S. J. Carroll, A. F. Abrahamse, 1999.

“Choice” auto insurance gives drivers the optionof selecting either a modified version of theirstate’s current auto insurance plan or a no-faultplan. Using the same analytical methods as intheir two previous studies on the same subject(MR-540-ICJ, based on 1987 data; and MR-970-ICJ,based on 1992 data), the authors estimated theeffects of a choice automobile insurance plan onthe costs of compensating auto accident victims.They find the choice plan can deliver on itspromise of offering dramatically less expensiveinsurance to drivers who are willing to give upaccess to compensation for noneconomic loss bypurchasing no-fault insurance, with little effect onthose who want to retain access to compensationfor both economic and noneconomic loss. Ifinsurers pass on cost savings, the adoption of achoice plan could translate into savings on totalpremiums of about 23 percent for purchasers ofno-fault insurance. Because claims behavior hasvaried over the years, these savings are greaterthan the authors’ estimate based on 1992 data, butnot as large as the savings based on 1987 data. 40pages. Bibliography.

MR-1171-EPA—The Financial Implications ofReleasing Small Firms and Small-Volume

Contributors from Superfund Liability. L. S.Dixon. 2000.

Recent congressional proposals to reform thefederal Superfund program would releasepotentially responsible parties (PRPs) that aresmall in size or that only played a minor role atthe site from liability for cleanup costs. Thesereforms transfer the cleanup costs from releasedparties to the Superfund Trust Fund. This reportestimates the number of PRPs that would bereleased and the cleanup costs that would betransferred to the Fund by recent proposals. It alsoestimates the costs transferred to the Fund perfirm released and the financial consequences forthose PRPs that remain liable. Releasing fromliability those firms that contributed only a smallproportion of the waste to a site appears to bemore cost-effective than releasing firms that aresmall in size. In addition, although evidence existsthat large firms will benefit from the transfer ofsmall firms’ costs to the Fund, the effect of such atransfer is ambiguous. Implementing reforms thatwould release small firms or small-volume firmsand transferring their volume-based cleanup coststo the Fund may prove costly in terms ofadditional transaction costs. 53 pages. References.

MR-1199-ICJ—The Effects of Third-Party BadFaith Doctrine on Automobile Insurance Costs andCompensation. Angela Hawken, S. J. Carroll, A. F.Abrahamse. 2001.

Whether an automobile accident victim should beallowed to bring a claim for punitive damages forunfair settlement practices against anotherperson’s liability insurer—a so-called third-party,bad faith suit—has become an important policyconcern. This book examines the compensationthat automobile insurers paid to accident victimsin California during a period, 1979 to 1988, whensuch punitive damages claims were permitted.This book looks at the effects of the adoption andsubsequent rejection of the Royal Globe doctrine,which allowed third-party bad-faith suits, oncompensation and costs of bodily injury claims.The authors find that the adoption of Royal Globetriggered sharp increases in both the averagebodily compensation payment and the relativefrequency of bodily injury claims in California


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relative to the other tort states. In contrast, theelimination of Royal Globe dramatically reversedthese trends. 76 pages. Bibliography.

MR-1256-PPIC/ICJ—Fighting Air Pollution inSouthern California by Scrapping Old Vehicles.L. S. Dixon, S. Garber. 2000.

Air pollution damages health and reduces thequality of life in California, in particular the SouthCoast Air Basin. This report examines the effectsof an innovative and controversial program, called“voluntary accelerated vehicle retirement,” whichis part of California’s plan for implementing thefederal Clean Air Act. Under the program, asmany as 75,000 light-duty vehicles (LDVs) thatare at least 15 years old would be bought andscrapped every year from 2001 to 2010. Theauthors predict that the program will increaseused-LDV prices over the first five years, but at adecreasing rate. Similarly, emission reductions arepredicted to be largest in 2005, declining graduallyduring the following five years. The programwould be discontinued in 2010, and the effects onused-LDV prices and emissions would essentiallybe eliminated by 2014. The authors conclude thatdespite the roughly $100-million-per-year pricetag (some of it probably from state tax dollars), theprogram is nevertheless cost-effective. If it is notimplemented, less cost-effective programs—oreven ineffective ones—may replace it in thestruggle to comply with federal standards. 86pages. References.

MR-1268-ICJ—Permanent Disability at Private,Self-Insured Firms: A Study of Earnings Loss,Replacement, and Return to Work for Workers’Compensation Claimants. R. T. Reville, S. Polich,S. Seabury, E. Giddens. 2000.

Employers that self-insure for workers’compensation have greater incentives thaninsured employers to return injured employees towork as quickly as possible. And because self-insured firms typically are larger, they often havemore opportunities to offer injured workersmodified work. This report examines theconsequences of a disabling workplace injury forworkers at 68 private self-insured employers inCalifornia from 1991 through 1995. Using

employer-provided data on permanent disabilityclaims, which were then linked to longitudinaldata from the state of California on earningsbefore and after injury, the authors estimate theearnings losses associated with a permanentdisability and examine the post-injuryemployment patterns of permanent disabilityclaimants. They found significant earnings lossesfor claimants at the self-insured firms—more than20 percent of earnings over the five years afterinjury. The authors compared the experiences ofworkers at self-insured firms with workers atinsured firms and found lower proportional lossesat self-insured firms, but also slightly lowerreplacement rates. They also found better return towork at self-insured firms. However, whencontrolling for pre-injury earnings, industry, andfirm size, differences in earnings losses betweenworkers injured at self-insured and insured firmsare diminished. 104 pages. References.

MR-1340-CSCR—The Effectiveness ofInvoluntary Outpatient Treatment: EmpiricalEvidence and the Experience of Eight States.S. Ridgely, R. Borum, J. Petrila. 2001.

For people with severe mental illness who becomegravely disabled or dangerous to themselves or toothers, states mandate involuntary treatment—typically civil commitment. In the past decade,many states have amended or interpreted theirexisting civil commitment statutes to allow forinvoluntary outpatient treatment. Such a law hasbeen proposed for California. At the request of theCalifornia State Senate, the authors conducted asystematic literature review on involuntaryoutpatient commitment; examined the experienceof eight other states including in-depth interviewswith attorneys, officials, and psychiatrists; andanalyzed the California data on service records forall persons served by California’s county-contractmental health agencies. They found thatinvoluntary outpatient commitment, whencombined with intensive mental health services,can be effective in reducing the risk of negativeoutcomes. But whether commitment orderswithout intensive treatment have any effect is anunanswered question. However, there is clearevidence that intensive community-based


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voluntary mental health treatment can producegood outcomes. Because it is impossible to knowfor sure whether an involuntary outpatientcommitment system is worth the additional cost,California policymakers might consider a limitedstatute that provides for a large, well-designedevaluation to answer some of these questions. 176pages. References.

MR-1384-ICJ—The Effect of No-Fault AutomobileInsurance on Driver Behavior and AutomobileAccidents in the United States. D. S. Loughran.2001.

No-fault auto insurance opponents frequentlyargue that no-fault may ultimately lead to higherauto insurance costs by reducing drivers’incentives to drive carefully and therebyincreasing the accident rate. The intuition behindthis criticism of no-fault is simple: No-fault autoinsurance lowers the cost of driving negligently bylimiting first-party liability for the injuries sufferedby third parties in auto accidents. This bookevaluates this criticism of no-fault by examiningtrends in fatal and non-fatal automobile accidentsrates and rates of driver negligence in the UnitedStates between 1967 and 1989. Contrary to someearlier research, the author finds no evidence thatthe adoption of no-fault auto insurance between1971 and 1976 in 16 states increased fatal accidentrates in those states. This book also finds nocorrelation between the presence of no-fault autoinsurance and a state’s overall accident rate or rateof driver negligence. 63 pages. Bibliography.

MR-1414-ICJ—An Evaluation of New MexicoWorkers’ Compensation Permanent PartialDisability and Return to Work. R. T. Reville, L. I.Boden, J. E. Biddle, C. Mardesich. 2001.

The New Mexico workers’ compensation systemhas been widely regarded as a success story sinceit was significantly reformed a decade ago.Workers’ compensation costs for the state’semployers are among the lowest in the country,insurer profits are among the highest, and thesystem is among the least litigious. Given thisenvironment, this book evaluates the adequacyand equity of workers’ compensation indemnityfor New Mexico workers receiving permanent

partial disability benefits. The authors compareoutcomes for workers with partially disablingoccupational injuries in New Mexico withoutcomes for their counterparts in California,Washington, Oregon, and Wisconsin. Aftercontrolling for differences across the five states,New Mexico’s replacement rates fall in the middle;however, benefits for sustained earnings losses arenot adequate by the commonly cited replacementstandard of two-thirds of pre-tax wages.Scheduled injuries, which include primarilyinjuries to the arms and legs, are less adequatelycompensated than unscheduled injuries, which areprimarily injuries to the back. The duration of timeuntil an employee’s return to work in New Mexicois much longer than that in other states, whichmay be accounted for by the other states’ activereturn-to-work programs. 117 pages.Bibliography.

MR-1425-ICJ—Improving Dispute Resolution forCalifornia’s Injured Workers. N. M. Pace, R. T.Reville, L. Galway, A. B. Geller, O. Hayden, L. A.Hill, C. Mardesich, F. W. Neuhauser, S. Polich,and J. Yeom. 2003.

For more than two decades, the workers’compensation courts increasingly have beenperceived as a weak link in the California workers’compensation system. The courts have beencriticized for being slow, expensive, andprocedurally inconsistent. In response to theseconcerns, the California Commission on Healthand Safety and Workers’ Compensation engagedthe RAND Institute for Civil Justice to conduct atop-to-bottom review of the workers’compensation courts in the state. The researchteam analyzed the causes of delay in theresolution of workers’ compensation disputes, thereasons for the high costs of litigation, and whyprocedures are inconsistent across the state. Theyfound that the courts’ problems stem largely fromsevere understaffing, the failure to upgrade theirmanagement information system, and a lack ofclear guidance and coordination in the governingrules and procedures. The study team proposes anumber of recommendations for change (coveringareas such as staffing, technology, judicialtraining, calendaring, continuance policies,


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internal office practices, and case management)that are designed to improve the process ofdispute resolution for California's injured workers.743 pages. Bibliography. (Note: This document isavailable on CD only, packaged with MR1425/1-ICJ.)

MR-1425/1-ICJ—Improving Dispute Resolutionfor California’s Injured Workers: Executive Sum-mary N. M. Pace, R. T. Reville, L. Galway, A. B.Geller, O. Hayden, L. A. Hill, C. Mardesich, F. W.Neuhauser, S. Polich, J. Yeom, and L. Zakaras.2003.

This report is an executive summary of MR-1425-ICJ. It is packaged with a companion CD thatcontains the full text of MR-1425-ICJ. 34 pages.

MR-1439-ICJ—Changes in the Standards forAdmitting Expert Evidence in Federal Civil CasesSince the Daubert Decision. L. S. Dixon, B. Gill.2001.

The U.S. Supreme Court’s 1993 Daubert decisiondirected federal judges to scrutinize the reliabilityof expert evidence proposed for admission at trial.This study uses a sample of federal district courtopinions between 1980 and 1999 to examine howjudges, plaintiffs, and defendants responded to thenew directive. The authors find that after Daubertjudges increasingly evaluated the reliability ofexpert evidence. A rise in both the proportion ofchallenged evidence that is found unreliable andthe proportion of challenged evidence that isexcluded suggests that the standards for admittingevidence tightened. A subsequent fall in these twoproportions suggests that the parties proposingand challenging evidence responded to the changein standards. The authors also examine how“general acceptance” of proposed evidence in theexpert community enters the reliability assessmentand which types of evidence were affected byDaubert. The authors caution that even thoughjudges are more actively screening expertevidence, whether they are doing so in ways thatproduce better outcomes has not been determined.The study concludes by identifying gaps in whatis known about how well federal courts screenexpert evidence and by recommending research tohelp fill those gaps. 116 pages. References.

MR-1457-ICJ—Trends in Earnings Loss fromDisabling Workplace Injuries in California: TheRole of Economic Conditions. R. T. Reville, R. F.Schoeni, C. W. Martin. 2002.

The adequacy of benefits for permanent disabilityfrom occupational injuries is a continuing sourceof controversy among policymakers in California.This book focuses on the economic consequencesof disabling injuries and what those outcomessuggest about the current adequacy of workers’compensation in California. In particular, theauthors investigate the relationship between lossesin earnings from workplace injuries and economicconditions in the state during the 1990s.

Although changes in economic conditions hadsome impact on earnings losses experienced bypermanent partial disability claimants, especiallyless-severely injured workers who are more easilyaccommodated by their employers, the decline inearnings losses may be more closely related tochanges in the workers’ compensation market.Even though benefit levels have increased since1991 and earnings losses have declined,replacement rates for lost income remain belowtwo-thirds of pre-tax wages, the standardcommonly cited for adequacy. Because benefitshave declined (in inflation-corrected dollars) sincetheir last increase in 1996 and, as of 2001, theeconomy is headed into a new recession, it ispossible that workers injured today will haveworse outcomes than workers injured in 1996 or1997. 66 pages. References.

MR-1776-ICJ—Adopting Medicare Fee Schedules:Consideration for the California Workers'Compensation Program. B. O. Wynn. 2003.

Medical costs have become the fastest-growingcomponent of the California workers’compensation program, increasing from 45percent of benefit costs in the mid-1990s to anestimated 55 percent of benefit costs in 2003. Inresponse to concerns about these rapidlyincreasing costs, the California Commission onHealth and Safety and Workers’ Compensation isrecommending changes in the current Division ofWorkers’ Compensation Official Medical FeeSchedule (OMFS) that determines the amount


January 2005

health care providers are paid for their medicalservices to the state’s injured workers. Specifically,the Commission proposes that the OMFS belinked to Medicare fee schedules for all servicesother than pharmaceutical services. This studyexamines areas that must be addressed if such alink were to occur, including policy issues arising

from the differences between the OMFS and theMedicare fee schedules, modifications that arelikely to be necessary to tailor the Medicare feeschedules to California’s injured workers, and theimplications of automatic annual updates to theschedules. 186 pages. References.

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MONOGRAPHS

MG-234-ICJ—Capping Non-Economic Awardsin Medical Malpractice Trials: California JuryVerdicts Under MICRA. N. Pace, D. Golinelli,L. Zakaras. 2004.

Concerns over the price and availability ofmedical malpractice insurance have sparked avigorous national debate over proposed federallegislation calling for limits on trial awards andattorneys’ fees in medical malpractice cases. Amodel for such limits is the Medical InjuryCompensation Reform Act (MICRA), a lawenacted in California in 1975 in the hope ofcontrolling soaring medical malpractice insurancepremiums and ensuring the continuingavailability of malpractice insurance coverage.MICRA caps awards for non-economic losses,such as pain or suffering, at $250,000 and limitsplaintiffs’ attorney fees. The authors studied theeffects of MICRA on plaintiffs’ awards and ondefendants’ liabilities and in doing so addressed anumber of questions: How have MICRA’s caps onnon-economic damages affected the finaljudgments in California jury trials? What types ofcases and claims are most likely to have an awardcap imposed following trial? What have been theeffects of MICRA on plaintiffs’ attorney fees andnet recoveries? If the MICRA cap had beenadjusted for inflation, what would have been theeffect on plaintiffs’ final awards? 108 pages.Bibliography.

MG-264-ICJ—Compensation for Losses from the9/11 Attacks. L. Dixon, R. Kaganoff Stern. 2004.

The terrorist attacks of September 11, 2001, causedtremendous loss of life, property, and income, andthe resulting response from public and privateorganizations was unprecedented. Thismonograph examines the benefits received bythose who were killed or seriously injured in theattacks and the benefits provided to individualsand businesses in New York City that suffered

losses from the attack on the World Trade Center.The authors examine the performance of the fourbasic mechanisms of the compensation system inthe United States—insurance, the tort system,government programs, and charity—inresponding to the losses stemming from the eventsof 9/11. This assessment should be useful inunderstanding how the losses created by 9/11differ from those following natural disasters andother catastrophic events, and can be used todevelop objectives for compensation in the eventof a future major attack. 212 pages. References.

MG-280-ICJ—Assessment of 24-Hour CareOptions for California. D. O. Farley, M.Greenberg, C. Nelson, S. Seabury. 2004.

Employers, insurers, and policymakers inCalifornia have been searching for options to thecurrent California workers’ compensation benefitssystem, which has both the highest and the fastest-growing insurance premium costs in the country.Proponents of a type of insurance program called24-hour care believe that such a program couldyield substantial workers’ compensation savings.A 24-hour care plan would consolidate employers’health care benefits, and possibly disabilitybenefits, for both work-related and non-work-related claims, and services could be delivered bythe same group of providers under a coordinatedinsurance package. (The name “24-hour care”derives from the premise that a single benefitmechanism can cover health care needs followingan injury wherever it occurs during the day, eitherat work or at home.) In this monograph, theauthors present the results of their assessment ofthe value of 24-hour care as a mechanism forreducing workers’ compensation costs, whilemaintaining or improving the quality of care. Theauthors discuss possible options for 24-hour caremodels, including one that consolidates onlymedical care services and one that consolidatesboth services and health insurance. 112 pages.References.

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REPORTS

R-2458-HCFA—Contingent Fees for PersonalInjury Litigation. P. M. Danzon. 1980.

Plaintiff attorneys on personal injury cases aretypically paid a contingent fee. Contingent fees arewidely believed to induce excessive litigation andare increasingly regulated. A theoretical analysisof contingent and hourly wage contracts showsthat, with competition for cases, attorneys paid acontingent fee will devote the amount of effortthat would be chosen by fully informed, risk-neutral plaintiffs paying by the hour: the net valueof the claim to the plaintiff will be maximized.However, risk-averse plaintiffs will underinvest inthe number of suits and amount spent per case, ifattorneys must be paid by the hour. Estimates ofthe effects of limits on contingent fees arepresented. If the benchmark of the optimumexpenditure on litigation is that which would bechosen by fully informed, risk-neutral plaintiffs,the unconstrained contingent fee is likely toinduce the closest approximation to this ideal.45 pages. References.

R-2622-HCFA—The Disposition of MedicalMalpractice Claims. P. M. Danzon. June1980.

A theoretical and empirical analysis of the disposi-tion of malpractice claims compares the actualoutcomes with the legal standard of paymentequal to damages, if, and only if, negligenceoccurred. An economic model of the settlementprocess assumes that the litigants attempt tomaximize wealth, subject to the legal standards ofliability and damage, and the costs of litigating.The model predicts that awards in settlements outof court will reflect the expected verdict, theprobability of the plaintiff’s winning, and the costsof going to court. The probability of the plaintiff’swinning in settlement will also reflect theprobability of winning in court, the size of theexpected verdict, and the costs of going to court.Evidence from three malpractice claims surveys isconsistent with the legal standard but departs inways predicted by the model. Characteristics ofthe injury, the plaintiff, and the defense influencethe outcome. 72 pages. Bibliography.

R-2623-HCFA—Why Are Malpractice PremiumsSo High—Or So Low? P. M. Danzon. 1980.

An empirical analysis of malpractice premiumspaid by physicians in 1976 shows that the hugerange ($75 to more than $50,000) reflects themultiplicative structure of rates. The rates arethe product of state, specialty, and coveragedifferentials, which-+ together account for roughly60 percent of the total variation in premiums. Thisimplies that the rating structure recommended bythe Insurance Services Office is widely followed.In this sample, state differentials account for asmaller fraction of the total variance than specialtydifferentials. About half the total state effect can beattributed to differences in the frequency andseverity of claims, presence of a discovery rule (anindicator of risk), and operation of medical societyprograms. Further research is necessary todetermine how far this rigid structure of ratesinterferes with the efficient functioning of the tortsystem. See also R-2458, R-2622, R-2661. 45 pages.Bibliography.

R-2716-ICJ—The Law and Economics of Workers’Compensation. L. Darling-Hammond, T. J.Kniesner. 1980.

This document presents a review of the majorissues of current concern to insurers, employers,workers, and government agencies regardingworkers’ compensation law. The compensationsystem has changed rapidly and dramatically overthe past decade, raising new questions andproblems with each reform. The authors discussthe issues that have been identified by experts inthe field and suggest areas for research that willhelp to clarify the effects of different options forreforming or redesigning the system in responseto these concerns. A brief history of workers’compensation in the United States and descriptionof the current status of the law and the systemitself are presented. The report also analyzes ingreater detail some of the economic issues pre-sented. The final section of the report presentssome suggestions for future research, which aredirected toward achieving a greater understand-ing of how the workers’ compensation systemproduces its outcomes and how proposed reforms

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will affect those outcomes. 86 pages. Bibliography.See also R-2716/1-ICJ.

R-2716/1-ICJ—The Law and Economics ofWorkers’ Compensation: Executive Summary. L.Darling-Hammond, T. J. Kniesner. 1980.

This report is an executive summary of R-2716-ICJ.16 pages.

R-2717-ICJ—Models of Legal Decisionmaking. D.A. Waterman, M. A. Peterson. 1981.

This report describes how the application of rule-based computer models could provide valuableinformation for the settlement process in civillitigation. Models would be developed by askinglawyers and insurance company claims adjustersto describe how they try to settle specific cases.Reasons for litigators’ actions over a broadlyrepresentative range of hypothetical cases couldbe translated into a series of “if-then” rules. Eachrule would describe part of the litigator’s decisionas an interim conclusion reached for a given set ofpremises for subsequent rules. The rules would beincorporated in a computer program that attemptsto reproduce litigators’ reasoning processes. Alimited prototype developed to explore thefeasibility of such models is described. Theprototype indicates that at least some aspects ofthe settlement process can be described by suchmodels, although further research is needed todevelop more comprehensive models and toaddress technical issues. 55 pages. References.

R-2732-ICJ—Court Efforts to Reduce PretrialDelay: A National Inventory. P. A. Ebener, J.Wilson-Adler, M. Selvin, M. S. Yesley. 1981.

This report is an inventory of state and local trialcourt procedures employed to reduce pretrialdelay of civil cases. It lists and describestechniques employed by the courts to combatpretrial delays in all 50 state court systems, asreported by court administrators at both the stateand metropolitan levels. It includes observationsby court officials on the extent to which theadopted measures have really changed the priorsituation, and what problems, if any, have arisen.The report describes how the procedures operateand raises implementation issues that courts

planning to adopt such techniques shouldconsider. 117 pages. Bibliography. See alsoR-2732/1-ICJ.

R-2732/1-ICJ—Court Efforts to Reduce PretrialDelay: A National Inventory: Executive Summary.P. A. Ebener, J. Wilson-Adler, M. Selvin, M. S.Yesley. 1981.


R-2733-ICJ—Judicial Arbitration in California: TheFirst Year. D. R, Hensler, A. J. Lipson, E. S. Rolph.1981.

A study of the critical implementation phase of theCalifornia judicial arbitration program is thesubject of this report. The authors begin byidentifying the primary objectives of theprogram’s supporters. They then describe thehistorical background of the adoption ofmandatory arbitration in California, and theevolution of the program’s design. The resultsof the exploratory analysis of the program’seffects are presented. Arbitration’s potential forreducing court workload is examined. The costs ofoperating the program during the first year areanalyzed and an approach to estimating theprogram’s potential effect on court costs ispresented. The effects of arbitration on litigants,focusing on time to disposition, costs of litigation,and equity, are discussed. The final sectionsummarizes the findings and discusses howcertain groups are likely to respond to theprogram in the future. The section concludes witha discussion of the research that will be needed fora comprehensive analysis of the costs and benefitsof the judicial arbitration program. 120 pages. Seealso R-2733/1-ICJ.

R-2733/1-ICJ—Judicial Arbitration in California:The First Year: Executive Summary. D. R. Hensler,A. J. Lipson, E. S. Rolph. 1981.


R-2792-ICJ—The Resolution of MedicalMalpractice Claims: Modeling the BargainingProcess. P. M. Danzon, L. A. Lillard. 1982.

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This report makes two contributions to the area oflegal studies. First, it develops a methodology thatpermits estimation of a model of the disputeresolution process, including outcomes in courtsettlements and out-of-court settlements. Thismethodology, including issues of statisticalestimation and identification, is carefully detailed.Second, the report applies the model to data onmedical malpractice claims. The model ofdispute resolution is presented in Section II of thereport. Section III discusses statistical issues ofestimation, parameter identification, andprediction. Section IV describes the malpracticedata for 1974 and 1976 and briefly presentsparameter estimates. The parameter estimatesand their interpretation are discussed in furtherdetail in Section V. Section VI presents furtherimplications of the estimates for tort reform,accounting for the distribution of dollar paymentsand the probability of winning in court.Concluding remarks appear in Section VII. 59pages. References.

R-2793-ICJ—The Resolution of MedicalMalpractice Claims: Research Results and PolicyImplications. P. M. Danzon, L. A. Lillard. 1982.

In the early 1970s, both the frequency of medicalmalpractice claims and the dollar awards to suc-cessful plaintiffs rose at unprecedented rates. In1974 through 1975, the malpractice insurance crisiserupted. By the end of 1976, most state legislatureshad enacted laws to deal with the perceivedcauses of the crisis. However, with only scantempirical evidence on the actual operation of thetort system and the likely effects of any changes,legislators have had to rely on anecdotal evidence,subjective reasoning, and conventional wisdom.The research summarized in this report aims atrectifying that deficiency. It analyzes twocomputerized files on more than 6,000 closedclaims, using a computerized model of thebargaining behavior through which claims areresolved. It produced useful evidence on theactual operation of the malpractice system,including changes made during the crisis, andanalytic tools that can be applied to understanddispute resolution in other contexts. 33 pages.References.

R-2870-ICJ/HCFA—The Frequency and Severityof Medical Malpractice Claims. P. M. Danzon.1982.

The frequency and severity of medical malpracticeclaims increased dramatically in the late 1960s andearly 1970s. In response to the malpractice crisis,many states enacted changes in tort law applicableto medical practitioners. This report presents someempirical evidence on the contribution of variousfactors to the diversity in the frequency andseverity of claims across states and over time.Section II provides an overview of countrywidetrends in claims for different lines of liabilityinsurance and differences among states inmalpractice litigation. Section III presents atheoretical model of the frequency and severity ofmedical malpractice claims. Section IV describesthe data and methodological issues. Section Vreports the empirical analysis of frequency ofclaims per capita, average severity per claim, andaverage claim cost per capita. Section VI analyzesthe determinants of the post-1975 tort reforms.Section VII summarizes the findings and policyimplications. 52 pages. Bibliography.

R-2881-ICJ—The Civil Jury: Trends in Trials andVerdicts, Cook County, Illinois, 1960–1979. M. A.Peterson, G. L. Priest. 1982.

This report presents the results of an extensiveexamination of the decisions made by litigants,courts, and juries in a large number of civil jurytrials. It is based on detailed data on 9,000 civilcases that were tried before juries in Cook County,Illinois (the nation’s second largest county),between 1960 and 1979. The information in thereport details more than 9,000 civil suits tried toverdict. These include all civil suits for moneydamages other than those arising from automobileand common carrier accidents and a one-quarterrandom sample of automobile and commoncarrier cases. The report describes trends in thenumber of civil jury trials, in the proportion ofcases in which defendants are found liable, and inthe size of awards to plaintiffs. These trends areanalyzed separately for ten different types of civilcases. The report does not try to explain the trendsor to draw out their implications. This report is thefirst in a series that will use the data to delve into

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the underlying causes of the events. See also R-2881-ICJ. 73 pages. Bibliography.

R-2881/1-ICJ—The Civil Jury: Trends in Trials andVerdicts, Cook County, Illinois, 1960–1979:Executive Summary. M. A. Peterson, G. L. Priest.1982.

This is an executive summary of R-2881-ICJ. 14pages.

R-2882-ICJ—Cost-Benefit Analysis and VoluntarySafety Standards for Consumer Products. L. L.Johnson. 1982.

The purpose of this study is to explore the oppor-tunities for expanding the use of cost-benefitanalysis, discuss problems standing in the way ofexpanding its usage, and suggest experimentswith it that can serve as benchmarks for furtherapplication. The study also recommends thecollection of better product-hazard information;such information would be valuable input if cost-benefit analysis is adopted, or if it is not, theinformation could still serve as a partial substitutefor cost-benefit analysis in the formulation offuture standards. Section II treats several topics asa foundation for the subsequent analysis. SectionIII discusses the relationships among costs, bene-fits, and the optimal level of product safety, andthe difficulties of pursuing cost-benefit analysis.Section IV explores the very limitedpast use of cost-benefit analysis in developingvoluntary standards. Section V addresses aparticularly important problem in improving thequality of cost-benefit analysis—that of obtainingbetter hazard information. The concluding SectionVI touches briefly on tradeoffs between devotingresources to cost-benefit analysis and devotingthem to other approaches to help ensure theappropriate level of product safety. 71 pages.Bibliography.

R-2888-ICJ—Costs of the Civil Justice System:Court Expenditures for Processing Tort Cases.J. S. Kakalik, A. Robyn. 1982.

This report deals with government expendituresfor processing tort cases, drawing on availabledata from federal and state agencies. Section IIpresents data on average judge-time expended per

tort cases filed, followed in Section III by data onthe total government expenditure per judge. InSection IV , the average government expenditureper tort case filed is calculated by multiplying thejudge-time per case by the total governmentexpenditure for all types of personnel combinedand other resources used per judge-minute.Finally, Section V estimates the nationwide totalannual government expenditure for processingtort cases. 91 pages. References.

R-2904-ICJ—Educational Policymaking Throughthe Civil Justice System. P. T. Hill, D. L. Madey.1982.

This report analyzes the use of the civil justicesystem to decide on the allocation of publicservices, in particular with regard to the 1975Education for All Handicapped Children Act. Theauthors found various levels of effects of usingcivil justice procedures to allocate educationalservices: (1) effects on the courts are slight; (2)effects on school systems are real but limited;and (3) effects on handicapped children arepositive—but some, especially those whoseparents are willing to threaten litigation, benefitfar more than others. The most important findingof the study is that the introduction of civil justiceprocedures has had an enormous effect on localschool policy, despite the low volume of litigation.The authors drew two conclusions regarding theuse of the civil justice system to decide on theallocation of public services: (1) Thanks to theintroduction of civil justice methods, PL-94–142 isapplied with far more rigorous attention to therights and duties of school personnel andbeneficiaries than are other federal educationprograms; and (2) despite the optimisticconclusions, the findings do not necessarilywarrant the extension of civil justice procedures toother areas of local educational policy. 34 pages.References.

R-2918-ICJ—Workers’ Compensation andWorkplace Safety: Some Lessons from EconomicTheory. R. B. Victor, L. R. Cohen, C. E. Phelps.1982.

This report uses the tools of economic theory toanalyze how firms can be expected to respond to

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financial incentives. The report focuses on astatement that is usually assumed to be true and isrepeated as conventional wisdom by many policy-makers and the researchers who advise them:Increasing Workers’ Compensation (WC) benefitsinduces a firm to increase safety. This report pre-sents the results of a theoretical analysis of howWC financial incentives influence the safety deci-sions of rational profit-maximizing firms. Theresearch suggests that although the commonwisdom has a strong theoretical basis in manycases, it does not have it in all cases, and theempirical evidence fails to provide much supportfor it. The analysis explores the conditions underwhich increasing WC benefits may enhance,diminish, or leave unaffected employers’ invest-ments in safety. 64 pages. Bibliography.

R-2922-ICJ—The Pace of Litigation: ConferenceProceedings. J. W. Adler, W. L. F. Felstiner, D.Hensler, M. A. Peterson. 1982.

This document reports the proceedings of aconference dealing with past and plannedempirical investigation of the delay of litigation.The three sessions of the conference dealt with thepace of court activity, the pace of lawyer activity,and arbitration, and the pace of litigation. Part Iprovides a synopsis of conference proceedings andPart II provides a transcript of the talks anddiscussions that followed. 145 pages.Bibliography.

R-2979-ICJ—Workers’ Compensation andWorkplace Safety: The Nature of EmployerFinancial Incentives. R. B. Victor. 1982.

This report provides, for the first time in aconvenient form, data and methods needed toexamine the nature, size, and adequacy ofWorkers’ Compensation (WC) financial incentivesfor prevention, and thereby to evaluate theconventional wisdom about WC and safety. Thereport examines the WC financial incentives facingemployers, under different insurancearrangements. The findings of the studydemonstrate the sensitivity of incentives to thecharacteristics of each state’s WC system, firmsize, interest rates, and insurance arrangements.Other conclusions reached include: (1) The

conventional wisdom is that self-insuredincentives exceed experience-rated insuredincentives, but the reverse is often true; (2)retrospective-rated incentives will typically exceedboth self-insured and experience-rated incentives;and (3) generalizations about the size of WCfinancial incentives should be made with greatcare. 68 pages. Bibliography.

R-2985-ICJ—Costs of the Civil Justice System:Court Expenditures for Various Types of CivilCases. J. S. Kakalik, R. L. Ross. 1983.

This report analyzes the cost of processingdomestic relations, mental health, probate andguardianship, property rights and condemnation,torts contracts and other civil complaints, andother civil petitions cases. Section II details theprocedures for estimating and analyzinggovernment expenditures for processing civilcases. Section III describes how the study derivedthe government expenditure per judge for each ofthe courts in the study—a necessary element in thecost-estimation procedure. Section IV reports theestimates of government expenditure and judge-time per civil case filed for various types of civilcases in state and federal courts. Finally, Section Vprovides estimates of the total nationwide gov-ernment expenditure for processing civil cases. 125pages. Bibliography.

R-3002-ICJ—Managerial Judges. J. Resnik.1982.

This report is a study of the recent development ofcase management by federal judges during boththe pretrial and posttrial phases of litigation. Afterdiscussing the underlying assumptions about thetraditional judicial role, the author gives a fulldescription of how judges manage both phases oflawsuits. Next, the author analyzes what iscurrently known about the results of pretrialmanagement and what effect such managementmight have upon the traditional judicial role.Finally, the author sets forth the alternative routesthat judicial reformers might follow. An appendixon the iconography of justice is included. 74 pages.Bibliography.

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R-3006-ICJ—Comparative Justice: Civil JuryVerdicts in San Francisco and Cook Counties,1959–1980. M. Shanley, M. A. Peterson.1983.

In this report, the authors describe San Franciscojury trials and jury verdicts during the 20-yearperiod from 1960 through 1979, and comparetrends and patterns with those found in CookCounty, Illinois. The data describe approximately5,300 civil cases that were tried before juries in SanFrancisco County. These are then compared withan earlier study of Cook County civil jury trials.The study suggests that there is reasonablesimilarity in jury decisions over time and indifferent places. Although these results providereassurance about juries, the frequency of theselow-stakes cases raises questions about theeconomics of the civil justice system. However,most of the jury trials studied are probablyeconomically justified for the parties. Althoughthe analyses in this report cannot explain why,there was one important change in jury verdicts inboth jurisdictions: the size of the largest awards.The size of the largest awards grew sharply inboth jurisdictions. In both studies, the authorsfound a general stability and consistency in jurydecisions over time and across jurisdictions. 91pages. Bibliography.

R-3011-ICJ—Compensation of Injuries: CivilJury Verdicts in Cook County. M. A. Peterson.1984.

This report describes types of injuries and lossesclaimed by plaintiffs, changes in claims during the1960s and 1970s, and relationships between juries’decisions and (1) the plaintiff’s physical injury; (2)the economic loss suffered by the plaintiff; (3) thetype of lawsuit brought; and (4) the year in whichthe case was tried. The findings show that neitherthe types of injuries claimed by plaintiffs or thelevel of compensation for most injuries changedappreciably between 1960 and 1980. However,compensation for the small number of cases thatinvolved unusually severe injuries grew in recentyears. The findings also show that compensationfor similar injuries differed by as much as fourfoldamong different types of lawsuits, and that suchdifferences increased in the 1970s. The report

offers explanations for why compensation mightdiffer among types of suits and describes furtherresearch that will examine some of these possibleexplanations. 95 pages. References.

R-3013-ICJ—New Tools for Reducing CivilLitigation Expenses. M. A. Peterson. 1983.

The resolution of civil liability claims is anexpensive and uncertain process. Frequent partiesto civil litigation face growing costs, but they mayreduce the expense and uncertainty of litigationthrough new methods of using computers.Organizations that have experience in handling alarge volume of civil litigation can use thesemethods to manage groups of cases and organizesingle, complex cases. Four new methods for usingcomputers—open claim analysis, closed claimanalysis, decision analysis, and rule-basedmodeling—may reduce the direct costs of litiga-tion and the indirect costs of uncertainty inevaluating civil claims. All four methods havebeen used to analyze and support decisions aboutlitigation, but most have not been widely applied.This report describes the development, uses, andlimitations of each method, so that insurancecompany claim departments, law firms,corporations, and other frequent parties tolitigation can consider whether those methodsmay be of help. 40 pages. References.

R-3022-ICJ—Designing Safer Products: CorporateResponses to Product Liability Law andRegulation. G. C. Eads, P. Reuter. 1983.

This report analyzes ways in which firms haveresponded to recent changes in pressures todesign safer products, using interviews withproduct safety officials with major manufacturersand extensive analysis of legal and scholarlyliteratures. Shifts to strict liability and morestringent regulation during the past 15 years haveincreased pressure to invest in safety assuranceprocedures, as evidenced by creation of newcorporate product safety units. The effectivenessof regulation has been more questionable than hasstrict liability in inducing better design practices.This report argues that federal product liabilitylegislation will have marginal effect, despite thecurrent variations in state law on the matter. This

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report also discusses the factors that influence theeffectiveness of corporate product safety units andsuggests that combining product safety withquality assurance may be the optimal strategy fora firm. 160 pages. References.

R-3032-ICJ—The Selection of Disputes forLitigation. G. L. Priest, B. H. Klein. 1984.

This study addresses the relationship betweenlitigated disputes and disputes settled before orduring litigation by presenting a model of thelitigation process in which the determinants ofsettlement and litigation are solely economic,including the expected costs to parties of favorableor adverse decisions, the information that partiespossess about the likelihood of success at trial, andthe direct costs of litigation and settlement. Themost important assumption of the model is thatpotential litigants form rational estimates of thelikely decision, whether it is based on applicablelegal precedent or judicial or jury bias. From thisproposition, the model shows that the disputesselected for litigation (as opposed to settlement)constitute neither a random nor a representativesample of the set of all disputes. 55 pages.Bibliography.

R-3042-ICJ—Costs of Asbestos Litigation. J. S.Kakalik, P. A. Ebener, W. L. F. Felstiner, M.Shanley. 1983.

This report examines the money spent to resolveasbestos-related injury lawsuits: who pays it, whoreceives it, and for what purposes. After sketchingin the Introduction the tangled context in whichspending occurs for asbestos product liabilitylitigation, subsequent sections analyze the actualcosts incurred by plaintiffs, defendants, andinsurers in the course of processing asbestos suitsto resolution. The analysis focuses on netcompensation (money received by injured personsafter deducting litigation expenses), and ondefense and plaintiff expenses (money paid tooperate the legal and insurance systems throughwhich society decides who should receive howmuch compensation and actual payment isarranged). Finally, the authors total theexpenditures and examine the ratio betweenlitigation expense payments and net compensation

(the “overhead” costs incurred in generating onedollar in payment to an injured person). 40 pages.

R-3050-ICJ—Automobile Accident Compensation:Vol. 1, Who Pays How Much How Soon? J. E.Rolph, J. K. Hammitt, R. L. Houchens, S. S. Polin.1985.

This study uses statistical methods to comparestate automobile accident compensation systemsby examining how likely an accident victim is tobe paid and the amount and timing of his pay-ment. The study analyzes how various aspects ofthe tort system and the no-fault systems, wherepresent, affect these outcomes. Among its findingswere (1) victims in no-fault states more oftencollect from first-party automobile insurance thanvictims in other states; (2) victims in no-fault statesare more likely to receive some payment; and (3)there is more consistency in payments in no-faultstates in that the total amount of compensation avictim receives for a given economic loss variesless. See also R-3051-ICJ, R-3052-ICJ, R-3053-ICJ. 33pages. Bibliography.

R-3051-ICJ—Automobile Accident Compensation:Vol. 2, Payments by Auto Insurers. J. K. Hammitt.1985.

Automobile accident victims may receive financialcompensation from several sources, depending onthe rules of their individual states. This reportanalyzes closed insurance claims data to describethe effects of interstate differences in liability rulesand insurance regulations on the compensationpayments made under automobile no-fault andliability insurance policies. No-fault payments areusually equal to the claimant’s economic loss, andno-fault claimants generally receive at least partialpayment more quickly than liability-insuranceclaimants. Liability-insurance payments also covermost claimants’ economic losses, and frequentlyinclude payment for general damages (forexample, pain and suffering) which, while highlyvariable, often exceed economic losses. Alternativeliability rules have only modest effects on thenumber of victims who obtain payment under aliability policy. See also R-3050-ICJ, R-3052-ICJ,R-3053-ICJ. 121 pages. References.

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R-3052-ICJ—Automobile Accident Compensation:Vol. 3, Payments from All Sources. R. L.Houchens. 1985.

This report compares outcomes of compensationsystems for victims of automobile accidents fromthree groups of states: (1) no-fault states, with no-fault legislation that restricts tort liability; (2) add-on states, in which no-fault legislation does notrestrict tort liability; and (3) tort states, without no-fault legislation. Among the study’s conclusionswere the following: (1) the probability of an autoaccident victim’s receiving any payment for hislosses is higher in add-on and no-fault states thanin tort states; (2) the average payment to the victimis usually nearer his economic loss in no-faultstates than it is in tort states and add-on states forsmall losses; (3) the employer is the single mostfrequent source for payment of wage loss, andpays exactly the amount of wage loss about 80percent of the time; and (4) victims in no-faultstates appear to have a better chance of gettingsome compensation for wage loss than do victimsin tort states. See also R-3050-ICJ, R-3051-ICJ, R-3053-ICJ. 63 pages. References.

R-3053-ICJ—Automobile Accident Compensation:Vol. 4, State Rules. J. K. Hammitt, R. L. Houchens,S. S. Polin, J. E. Rolph. 1985.

The rules governing the sources of financialcompensation that are available to accidentvictims vary widely between states. This reportcatalogues and explains the current liability rulesand insurance regulations in all fifty states. As anaid to understanding the patterns of rules withinstates, it classifies the states into ten groups, usinga refinement of the traditional tort/no-fault/add-on system. See also R-3050-ICJ, R-3051-ICJ, R-3052-ICJ. 61 pages. References.

R-3071-ICJ—Simple Justice: How Litigants Fare inthe Pittsburgh Court Arbitration Program.J. W. Adler, D. Hensler, C. E. Nelson, G. J. Rest.1983.

This report examines the arbitration program ofthe Pittsburgh (Allegheny County) Court ofCommon Pleas, which at the time of the studyapplied to cases of $10,000 or less. Section IIdescribes how arbitration works in Pittsburgh and

analyzes the characteristics of the arbitrationcaseload. Section III analyzes the objective out-comes of arbitration: the distribution of wins andlosses, the amounts of money awarded to differenttypes of cases and litigants, the pattern of appeals,the distribution of appeal outcomes, and the costsassociated with taking a case to arbitration hearingand through the appeal process. In Section IV, theauthors discuss litigants’ views of arbitration.Also described are litigants’ assessments of the“fairness” of the arbitration process and of theappropriateness of case outcomes, their level ofsatisfaction, and the role of perceptions of proce-dural fairness in determining litigant satisfaction.Section V assesses the uses and limitations ofcourt-administered arbitration programs, drawingon the results of the previous sections. 152 pages.References.

R-3084-ICJ—Regulating the Content and Volumeof Litigation: An Economic Analysis. G. L. Priest.1983.

In recent years, courts and legislatures have usedrules that shift liability for court costs and attor-neys’ fees to plaintiffs or defendants to achievetwo different objectives: to encourage litigation byparticular plaintiffs (in civil rights, pollution, andconsumer litigation), and to regulate the volumeof litigation (most commonly to encouragesettlement). These goals are contradictory and inconflict in a recent Supreme Court case, Delta AirLines, Inc. vs. August. This essay discusses the dis-tributive effects of these rules and their effects onthe rate of litigation. The analysis expands otherrecent treatments by considering offer-of-judg-ment rules and the parties’ strategic actions. 21pages. Bibliography.

R-3132-ICJ—Variation in Asbestos LitigationCompensation and Expenses. J. S. Kakalik, P. A.Ebener, W. L. F. Felstiner, G. W. Haggstrom, M.Shanley. 1984.

This report analyzes characteristics of individualclaims that explain variation in compensation andexpenses. The first section describes the researchapproach and sketches the tangled context inwhich spending occurs for asbestos productliability litigation. Section II presents data on the

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characteristics of closed claims and on the actualcompensation paid and expenses incurred byplaintiffs, defendants, and insurers in 1980–1982.Section III focuses on explaining the variation intotal compensation. Sections IV, V, and VI,respectively, analyze claim characteristics thathelp explain why certain claims receive nocompensation, identify which claims proceed totrial instead of being closed before trial, andidentify which claims result in punitive awards.Sections VII and VIII analyze the variations indefense and plaintiff litigation expenses. Finally,Section IX totals the expenditures and examinesthe ratio between litigation expense payments andnet compensation. 91 pages. Bibliography.

R-3165-ICJ—Managing the Unmanageable: AHistory of Civil Delay in the Los Angeles SuperiorCourt. M. Selvin, P. A. Ebener. 1984..

This study of civil delay and congestion in the LosAngeles Superior Court since the early twentiethcentury is an effort to provide an empirical basisfor determining the extent to which these prob-lems have worsened over the years. It considers(1) whether civil delay has increased steadily; (2)whether sources of delay are the same now as inthe past; (3) effectiveness of innovations the courthas introduced in the past to improve the situa-tion; (4) larger institutional or political forces thatmay have influenced the effectiveness of any pro-cedural innovation; and (5) how delay in LosAngeles courts compares with that of othermetropolitan trial courts. The authors do not finda conclusive explanation for the recent increases incivil delay in Los Angeles, but believe thatchanges in the characteristics of the civil caseloadmay have contributed to increased delay, and findthat this conclusion applies to other metropolitanareas as well. They conclude that the court shouldfocus its delay-reduction efforts on adding to itsexisting resources and more effectively allocatingthe resources it does have to its most time-consuming cases. 172 pages. Bibliography.

R-3167-ICJ—Introducing Court-AnnexedArbitration: A Policymaker’s Guide. E. S. Rolph.1984.

Court-annexed arbitration is a court-run disputeresolution process to which cases that meet somespecified criteria are involuntarily assigned.Arbitrators hear the case and render awards thatare not binding, however, as a litigant may alwaysrequest a trial. In the last decade, court-annexedarbitration has gained popularity as a means ofhandling small civil cases. Using in-depth analysisof arbitration in several courts, and survey resultsfrom a remaining group of courts, this reportsummarizes the variety of program designalternatives, assesses the probable implications ofchoosing one set of alternatives over another, anddiscusses methods that courts adopting arbitrationmight use to evaluate its effectiveness. 113 pages.Bibliography.

R-3249-ICJ—Deep Pockets, Empty Pockets: WhoWins in Cook County Jury Trials. A. W. Chin, M.A. Peterson. 1985.

This report examines how different types of par-ties fared in over 9,000 civil jury trials in CookCounty, Illinois, between 1959 and 1979. It buildson two previous studies of civil jury trials, TheCivil Jury: Trends in Trials and Verdicts, CookCounty, Illinois 1960–1979 R-2881-ICJ, andCompensation of Injuries: Civil Jury Verdicts in CookCounty R-3011-ICJ. These studies found substantialdisparities in outcomes for different types oflawsuits, even after the types and seriousness ofplaintiffs’ injuries and the amount of claimedeconomic losses were accounted for. The analysesin the present report describe variations in out-comes for different types of litigants, and find thatcorporate defendants paid damage awards thatwere one-third larger than those that individualdefendants had to pay. Government defendantspaid even more than corporations in most of theirlawsuits. However, corporations fared worse thanall other defendants in lawsuits where plaintiffsclaimed very severe injuries. Among individuallitigants, blacks lost more often than whites, bothas plaintiffs and defendants, and black plaintiffsreceived smaller awards. Black defendants, how-ever, paid less than their white counterparts. 108pages. References.

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R-3311-ICJ—Punitive Damages: EmpiricalFindings. M. A. Peterson, S. Sarma, M. Shanley.1987.

Based on cases that reached jury verdict in CookCounty, Illinois, and San Francisco, California,from 1960 to 1984, this report presents analyticallyderived answers to questions surrounding theaward of punitive damages: (1) how frequentlypunitive damages are awarded in civil suits; (2)what types of cases and defendants are mostsubject to such awards; and (3) what proportion ofthe monies awarded in punitive damages isactually paid out. The findings confirm trends forwhich there had only been anecdotal evidence:The incidence of punitive damage awards(measured by proportion of cases in which suchawards are made) and the amount of money(measured in constant 1984 dollars) awarded forpunitive purposes have increased substantiallyover the years. Corporate defendants are in factmore likely than individuals or public agencies tobe the target of such awards. Many damageawards are significantly reduced and only abouthalf of the dollars awarded are ultimately paidsubsequent to award at the trial court level. 68pages. References.

R-3324-ICJ—Asbestos in the Courts: TheChallenge of Mass Toxic Torts. D. Hensler, W. L.F. Felstiner, M. Selvin, P. A. Ebener. 1985.

This report presents the results of a study of howthe civil justice system has dealt with thechallenges presented by asbestos litigation. Itssections describe (1) the characteristics of asbestoslitigation, both at the individual case level and atthe aggregate level; (2) the way in which the courtsystem has approached the three critical tasks oflitigation: substantive decisionmaking, preparingcases for trial, and disposing of cases; and (3) theimplications of the findings. Based on their obser-vations of the asbestos litigation process, theauthors review the strengths and weaknesses ofthe tort system as a mechanism for resolving masstoxic torts, consider changes that might strengthenthe system, and suggest a mechanism for formu-lating new policies. 128 pages. Bibliography.

R-3391-ICJ—Costs and Compensation Paid in TortLitigation. J. S. Kakalik, N. M. Pace. 1986.

This study was undertaken to answer the follow-ing questions: What was the total expenditurenationwide for tort litigation terminated in stateand federal courts of general jurisdiction in 1985?How much of the total was spent for the variouscosts of the tort litigation system: plaintiffs’ anddefendants’ legal fees and other litigationexpenses, the value of litigants’ time spent on thelawsuits, the value of time spent by insurancepersonnel, and the costs of operating the courts?How much of the total was net compensation toplaintiffs? How do litigation costs and compensa-tion paid differ for torts involving motor vehiclesand for all other torts? How fast is the tort systemgrowing? The study indicates that plaintiffs withtort lawsuits in state and federal courts of generaljurisdiction received approximately half of the $27billion to $34 billion spent in 1985. The costs of lit-igation consumed the other half. 157 pages.Bibliography.

R-3410-ICJ—New Evidence on the Frequency andSeverity of Medical Malpractice Claims. P. M.Danzon. 1986.

This report updates an earlier analysis (R-2870-ICJ/HCFA) of the effects of demographic,medical, and legal factors on the frequency andseverity of medical malpractice claims. Usingclaims data from 1975–1984, the author analyzesthe effects of tort reform on malpractice claimsafter taking into account the effects of othervariables that have previously been shown tocorrelate with claims frequency and severity. Theevidence from the study suggests that the lastround of tort reforms affected the frequency andseverity of malpractice claims over the decade1975–1984 in a way broadly consistent with theoryand previous evidence. Claim frequency perphysician has grown at roughly 10 percent a yearand severity has increased at twice the consumerprice inflation rate. Nevertheless, tort changeshave had some effect. States that enacted shorterstatutes of limitations and set outer limits ondiscovery rules have had less growth in claimfrequency than would otherwise have beenpredicted. States with statutes permitting or

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mandating the offset of collateral benefits had 14percent fewer claims, and 11 to 18 percent smallerpayouts, than would otherwise have beenpredicted. States with caps on awards havereduced severity by 23 percent. Arbitrationstatutes appear to have increased claim frequencybut reduced average severity. 35 pages.Bibliography.

R-3421-ICJ—Costs and Compensation Paid inAviation Accident Litigation. J. S. Kakalik,E. M. King, M. Traynor, P. A. Ebener, L. O. Picus.1988.

Based on a review of more than 2,000 U.S. airlineaviation accident death cases from 1970 to 1984,this report describes the characteristics of thedecedents and compares the compensation paid totheir survivors with the levels of economic lossthey suffered. The study found that the plaintiffsreceived 71 percent in net compensation, and 29percent went for transactions costs. The findingsindicate that airline accident litigation has highertransactions costs, but a lower ratio of transactionscosts to total expenditures than tort litigation ingeneral. See also R-3549, R-3551, R-3585, R-3684,N-2773. 150 pages. Bibliography.

R-3466-ICJ—Civil Juries in the 1980s: Trends inJury Trials and Verdicts in California and CookCounty, Illinois. M. A. Peterson. 1987.

This report extends earlier efforts to documentand analyze the outcomes produced by the civiljustice system, based on studies of civil jury trialsin Cook County, Illinois, and San FranciscoCounty, California. First, the report updates theearlier work by incorporating data for the years1980 through 1984. Second, it expands the scope ofthe study to include the entire state of California.Past patterns in jury awards continued in CookCounty during the 1980s: The size of most juryawards did not increase (the median actually fell),but large jury awards, and therefore the average,increased sharply. The pattern that prevailed inboth jurisdictions during the 1960s and 1970s,however, changed in San Francisco: There was asubstantial increase in the size of awards duringthe 1980s across the entire range of cases tried instate and federal courts. Unlike past findings, the

increase was not restricted to a few very largeawards. The average award increased as inprevious years, but median awards also increasedto triple the median of the late 1970s. 62 pages.References.

R-3479-ICJ—The Debate over Jury Performance:Observations from a Recent Asbestos Case.M. Selvin, L. O. Picus. 1987.

Recent verdicts in lawsuits that are arising fromwidespread exposure to toxic substances, and thelarge compensatory and punitive awards intraditional liability cases, have revived debatesand complaints about the competency of layjurors. This case study describes an interviewconducted with the jury that decided an asbestosproducts liability case in Texas in 1984. Afterdeliberating for one day, the jury found eachdefendant liable and awarded the four plaintiffs$7.9 million. The legal issues raised in theNewman trial, the claims made, and the witnessesand evidence on each side are typical of thoseraised in other asbestos jury trials. According toexperimental research, jurors do not have full oraccurate memories for trial testimony. TheNewman panel behavior is consonant withexperimentally based observations, but that doesnot explain why the panel reached its specificdecision. In some ways, most notably how itcomputed its large compensatory damage awards,its behavior was inconsistent with previous find-ings about jury behavior. 110 pages. Bibliography.

R-3511-ICJ—Posttrial Adjustments to JuryAwards. M. Shanley, M. A. Peterson. 1987.

Motivated by the recent national debate on thegrowth of jury awards, this report examines howjury awards change after trial. It considers not justtort actions, but all civil suits for money damages.For all types of cases, it (1) compares jury awardsto final payments; (2) examines how results varyby award size; and (3) studies whether resultsdiffer by case characteristics. The authors findthat, in the locales studied, defendants paid out anaverage proportion of 0.71 of the amount the juryoriginally awarded. Further, reductions weregenerally greater among cases with the largestawards. However, some sizable awards were not

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lowered, and results differed significantlydepending on the characteristics of the case. Thefindings suggest that the system works already inmuch the same way that the current proposals forlegal change are intended to work, namely, byaffecting “excessive” awards. 76 pages.References.

R-3549-ICJ—Computing Economic Loss in Casesof Wrongful Death. E. M. King, J. P. Smith.1988.

This report outlines a new method for computingeconomic loss in cases of wrongful death. Theauthors use the human capital (or lost economicoutput) approach because it dominates actuallitigation. In this conceptual model, economic lossis the value of the decedent’s lost futureproductivity, market and nonmarket. Themethodology includes seven elements: (1) base-year incomes; (2) salary growth; (3) work lifediscounts; (4) nonmarket loss; (5) personalconsumption offset; (6) taxes; and (7) discountrates. The methodology can be applied in a widerange of tort cases besides wrongful death. Seealso R-3421, R-3551, R-3585, R-3684, N-2773. 124pages. Bibliography.

R-3551-ICJ—Economic Loss and Compensationin Aviation Accidents. E. M. King, J. P. Smith.1988.

This report considers wrongful-death litigationresulting from aviation accidents. It comparesbenchmark measures of economic loss and loss tosurvivors with the compensation that beneficiariesactually received. The findings indicate that forthe years under study, the tort system did notfully compensate survivors for the losses they suf-fered from air accidents; similarly harmed indi-viduals were not treated the same; compensationpaid through the tort system does not significantlyadd to safety incentives; and compensation andrecovery rates have risen dramatically over theyears under study. See also R-3421, R-3549, R-3585, R-3684, N-2773. 123 pages.

R-3554-ICJ—Assessing the Effects of TortReforms. S. J. Carroll, N. M. Pace. 1987.

This report offers a framework for assessing theeffects of tort reforms. It attempts to provide acoherent structure for systematically thinkingabout how research can contribute to the policydebate over tort reform. It identifies four basicpolicy issues critical to assessing the effects of tortreforms on the tort system: (1) how soon we canexpect to see effects of reforms; (2) whetherreforms have affected the outcomes of disputes;(3) who won, who lost, and how much; and (4)whether reforms have affected economic behavior.The author points out that the kinds of dataneeded to assess the effects of reform are generallynot available, and suggests that three types of newdata collection systems need to be considered: (1)systematic efforts to obtain data from insurers andself-insured defendants on the aggregate out-comes of liability claims; (2) special surveys ofclaimants, the bar, and insurers to obtain thedetailed individual claim information needed toidentify the winners and losers in the reformedsystem; and (3) systems for collecting informationboth on the other factors that affect the behavior ofparticipants in the tort system, and on economicoutcomes and injuries. 72 pages. Bibliography.

R-3583-ICJ—Trends in Tort Litigation: The StoryBehind the Statistics. D. Hensler, M. E. Vaiana, J. S.Kakalik, M. A. Peterson. 1987.

This Special Report from The RAND Corporation’sInstitute for Civil Justice draws on seven years ofICJ research to consider three issues at the heart ofthe recent debate on trends in tort litigation: (1)how much litigation there is; (2) whether juryawards are stable or out of control; and (3) howmuch litigation costs and who gets the money. Theresearch suggests that discrepancies among thestatistics on tort litigation can be explained by thefact that there is no longer, if there ever was, asingle tort system. Instead, there are at least threetypes of tort litigation, each with its own class oflitigants, attorneys, and legal dynamics. The threetypes of torts are routine personal injury torts (forexample, auto suits), high-stakes personal injurytorts (for example, product liability, malpractice,and business suits), and mass latent injury cases(for example, asbestos litigation). Each of theseareas is characterized by a different litigation

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growth rate, jury verdict trend, and cost profile;therefore, treating them together—as is donewhenever overall statistics for tort litigation arereported—produces a distorted picture. 34 pages.Bibliography.

R-3585-ICJ—Dispute Resolution FollowingAirplane Crashes. E. M. King, J. P. Smith.1988.

This report summarizes results of legal actionsthat claimants pursued to recover their losses inmajor aviation accidents. In particular, it attemptsto determine why some cases settle early andothers do not. The authors describe the elementsthat distinguish air-crash litigation. They discussthe simple correlation between economic losssuffered and litigation process pursued, the theorybehind the empirical models, and the operationaldefinition of the empirical variables. The analysisindicates that, where large losses to survivorswere involved, claimants were more likely to sue,to go to trial, and to have longer time to closure,indicating that the stakes are important indetermining which cases make greater demandson the tort system. See also R-3421, R-3549, R-3551,R-3684, N-2773. 56 pages. Bibliography.

R-3602-ICJ—The Legal and EconomicConsequences of Wrongful Termination. J. N.Dertouzos, E. Holland, P. A. Ebener. 1988.

Although there has been an uproar over wrongfultermination litigation, the aggregate legal costs arenot large, even compared with the number ofinvoluntarily terminated employees who are nototherwise protected by collective bargainingagreements, civil service regulations, or explicitemployment contracts. The direct costs mayunderstate the effects of wrongful terminationsuits. The fear of such suits could preventmanagers from being flexible in adjusting tobusiness cycles, new investment opportunities, orevolving technologies. In response to wrongfultermination suits, administrative costs may risesubstantially. Costly procedural changes could bebalanced by benefits stemming from more efficientutilization of human resources, making everyonebetter off. 73 pages. References.

R-3668-ICJ—Product Liability and the BusinessSector: Litigation Trends in Federal Courts.T. Dunworth. 1988.

This report analyzes the product liability litigationthat occurred in federal district courts from mid-1973 through mid-1986. It attempts to clarify thedebate over whether product liability litigationhas involved thousands of companies and prod-ucts and therefore damaged U.S. business, orwhether such litigation has consisted primarily of“epidemics” of suits limited to a few productsand affecting only a few businesses. It considershow many companies have been involved in fed-eral product liability litigation and to whichindustry groups they belong; and it examines thepatterns exhibited by federal product liabilityfilings since the mid-1970s. The most importantgeneral conclusion is that there is significantdiversity among defendants, among industries,and even within industries. In particular, a dis-tinction must be drawn between the tiny numberof defendants named in thousands of suits, andthe thousands of defendants named only once ortwice. Policy and law developed to deal with thesituation must recognize that an approach thatseems suitable for one facet of litigation may beinappropriate for another. 79 pages. Bibliography.

R-3676-ICJ—Alternative Adjudication: AnEvaluation of the New Jersey AutomobileArbitration Program. R. J. MacCoun, E. A. Lind,D. Hensler, D. L. Bryant, P. A. Ebener. 1988.

In 1985, New Jersey implemented a statewideprogram of mandatory court-administeredarbitration of automobile injury lawsuits. In orderto evaluate the program, the Institute for CivilJustice examined court records for a randomsample of more than 1,000 auto negligence casesfiled in either 1983 (pre-arbitration) or 1985 (post-arbitration), and surveyed approximately 300litigants and 400 attorneys. No significant changesin trial rates or litigation costs were found.However, the program has had someunanticipated effects. Cases that are assigned tothe program are significantly less likely to settleprivately without a third-party hearing and, onaverage, take significantly longer to terminatethan in the pre-arbitration period. Both litigants

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and attorneys evaluate arbitration hearings quitefavorably. It appears that the program isproviding disputants greater access to third-partyhearings, but not greater efficiency. 134 pages.References.

R-3684-ICJ—Executive Summaries of the AviationAccident Study. J. S. Kakalik, E. M. King, J. P.Smith, M. Traynor, P. A. Eben

In 1985, RAND’s Institute for Civil Justiceundertook a detailed study of aviation accidentlitigation in the United States. This reportsummarizes the resulting four detailed studyreports. It describes the characteristics of thedecedents and the litigation, and provides data oncompensation paid, litigation costs, and economiclosses suffered. The report compares the economiclosses and transactions costs with the amount ofcompensation paid. The findings indicate thatairlines and other defendants compensatedvictims’ survivors for less than half of theiraverage economic loss. The findings also indicatethat aviation accident litigation has highertransactions costs than tort litigation in general,but a lower ratio of transactions costs to totalexpenditures. See also R-3421, R-3549, R-3551, R-3585, N-2773. 64 pages. Bibliography.

R-3708-ICJ—The Perception of Justice: TortLitigants’ Views of Trial, Court-AnnexedArbitration, and Judicial Settlement Conferences.E. A. Lind, R. J. MacCoun, P. A. Ebener, W. L. F.Felstiner, D. Hensler, J. Resnik, T. R. Tyler.1989.

This report investigates the attitudes andperceptions of individual plaintiffs anddefendants in personal-injury tort cases in threestate courts. Specifically, the report investigateshow tort litigants’ impressions of fairness andsatisfaction with their experiences in the civiljustice system are affected by hearing procedures,case events, and the litigation process. The authorsfound that the three third-party procedures theystudied—trial, court-annexed arbitration, andjudicial settlement—differed considerably in theprocedural fairness and satisfaction ratings theyengendered: Arbitration hearings and trials wereviewed more favorably than were settlement

conferences. The findings suggest that improve-ments in perceived justice and satisfaction aremore likely to come from changes in the tone ofthe judicial process than from innovationsdesigned to cut costs or reduce delay. Further,innovations intended to reduce costs and delayshould not do so at the expense of those qualitiesof the judicial process that are more important tolitigants. 93 pages. References.

R-3762-ICJ—Averting Gridlock: Strategies forReducing Civil Delay in the Los Angeles SuperiorCourt. J. S. Kakalik, M. Selvin, N. M. Pace.1990.

Delay in the disposition of civil cases in the LosAngeles Superior Court is a severe problem.Litigants who want a jury trial must now typicallywait five years from the time they file their casesfor the trials to begin. Time to disposition is muchlonger in Los Angeles than in the typical urbancourt and much longer than the two-year timestandard. Court judges and administrators havelong recognized the delay problem and have beenworking hard to find ways to speed the disposi-tion of civil cases. Despite their efforts, the delayproblem has persisted and has worsened in recentyears. This analysis explored the major possibleexplanations for the current long times to disposi-tion in the Los Angeles Superior Court. Theauthors show that the causes of civil delay aremultiple and complex, but largely result fromthree factors: the demand for court servicesexceeds the supply of judicial officers; the courtcould manage individual cases and courtpersonnel more effectively; and litigants and theirlawyers are, in some instances, delaying thedisposition of cases. See also N-2988. 117 pages.Bibliography.

R-3809-ICJ—Arbitrating High-Stakes Cases: AnEvaluation of Court-Annexed Arbitration in aUnited States District Court. E. A. Lind. 1990.

Court-annexed arbitration, which requires thereferral of civil cases to nonbinding arbitrationbefore a lawyer-arbitrator, has become anincreasingly common feature of civil procedure,though it has been largely confined to state courtprograms for small tort cases. In the past decade,

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however, arbitration procedures have increasinglybeen used in the federal district courts, which tendto apply such procedures to much larger cases andto contract cases as well as torts. This reportdescribes a four-year study of court-annexedarbitration in the U.S. District Court for theMiddle District of North Carolina. The studyexamined the efficacy of court-annexed arbitrationin high-stakes federal tort and contract cases. Thestudy found the program had few negative effectsand many positive ones, including improvedaccess to the justice system, reduction of privatelitigation costs, and favorable reactions by bothlitigants and attorneys. The success of thearbitration program in the Middle District ofNorth Carolina shows that alternative disputeresolution can produce benefits for disputants inlarge-stakes cases. 120 pages. Bibliography.

R-3832-ICJ—Experimental Research on JuryDecision-Making. R. J. MacCoun. 1989.

Jury verdicts directly affect the lives of hundredsof thousands of people in the United States everyyear and serve a bellwether function in plea bar-gaining and settlement negotiations. But becausejuries deliberate in secret, legal policymakers havemade important decisions about the scope andconduct of jury trials on the basis of untested intu-itions about how juries reach verdicts. In thisreview of research on jury behavior, the authoremphasizes the use of mock jury experiments totest hypotheses and refine theoretical models ofthe decision process. Because jury decisionmakinginvolves two different phases—cognitive pro-cessing during the trial and deliberation in thejury room—the author reviews research on boththe trial and deliberation phases of the judgmentprocess. In keeping with the emphasis of most juryresearch, he focuses primarily on decisionmakingin criminal trials; the extent to which the findingscan be applied to civil litigation is discussed in N-2671. (Reprinted from Science, Vol. 244, June 1989.)5 pages. References.

R-3838-ICJ—Understanding Superfund: AProgress Report. J. P. Acton. 1989.

The Superfund program, established by Congressin 1980 and reauthorized in 1986, is intended tohandle emergencies arising from the release ofhazardous wastes, to provide long-term cleanupfor a limited number of sites, and to encouragemore responsible disposal of hazardous wastes inthe future. This report (1) provides an overview ofthe Superfund program, its legal basis, and itssources of funds; (2) presents a concise descriptionof incentives and the major administrative stepstaken in their application; (3) gives an overview ofthe major indicators of program effect based onpublic data available from the EnvironmentalProtection Agency and other selected sources; (4)presents a short interpretation of some of the mostinteresting or puzzling findings; and (5) outlinesstatistics and attempts to capture costs andactivities for each major group participatingin the Superfund process. This report alsoconsiders the transaction-cost issue, focusing ontwo of the key players in the cleanup process: verylarge companies (potentially responsible parties)and insurers that are brought into the hazardous-waste cleanup process by their policyholders’indemnity claims. It describes their experienceswith Superfund and Superfund-type sites, andshows the division of their expenses betweencleanup and transaction costs. 65 pages.References.

R-3885-ICJ—Statistical Overview of CivilLitigation in the Federal Courts. T. Dunworth, N.M. Pace. 1990.

This report presents a longitudinal study of filingpatterns in federal district courts and of the timetaken to dispose of cases in those courts. It takes asits focus private civil litigation conducted between1971 and 1986; hence, all such cases that wereterminated by the district court system during thatperiod are included in the analysis. The study,which assesses the performance of the entiredistrict court system and provides an in-depthexamination of case processing in fast, slow, andaverage districts, shows that in the aggregate,private civil suits reached disposition in about thesame amount of time in 1986 as in 1971, but thatthis measure varied considerably from district todistrict. A review of factors that intuitively seem

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likely to be associated with such time-to-disposition differences, including case mixture,processing characteristics, and resource levels,reveals that none, in fact, bears a substantialrelationship to variation in disposition times. Thereport concludes with a consideration of furtherresearch that might shed light on the determinantsof the pace of case processing. 92 pages.References.

R-3989-ICJ—Labor Market Responses toEmployer Liability. J. N. Dertouzos, L. A. Karoly.1992.

The labor market in the United States has alwaysbeen more flexible than labor markets of otherWestern societies. American employers have beenrelatively unencumbered in dismissing poorperformers or adjusting the labor force in responseto exogenous changes in product demand,technological change, or the competitiveenvironment. Recently, however, state judiciarieshave adopted a number of wrongful-terminationdoctrines that challenge the “employment-at-will” rule. This report provides the first empiricalestimates of the aggregate effects of wrongfultermination. It outlines the major exceptions toemployment at will that have been adopted bystate court jurisdictions. It also examines thetiming and pattern of state adoption of the newdoctrines. In an econometric analysis, it identifiesthose political, legal, and economic factors that arecorrelated with, and possibly causes of, thechanges in court views of employee job protection.The authors also consider the economic factorsthat may have induced changes in the legalenvironment to derive reliable causal inferencesabout the subsequent effect on labor markets. Theauthors also evaluate the likely consequences ofthe legal changes for the behavior of businessdecisionmakers and derive testable implicationsfor labor-market outcomes. Finally, they presenttheir empirical findings on state-level employmenteffects that can be linked to expanding liabilities.The findings suggest that the indirect effects ofwrongful-termination doctrines are 100 timesmore costly than the direct legal costs of juryawards, settlements, and attorney fees. Whether ornot these changes are desirable depends upon

whether or not there are compensating benefits toemployees, firms, or society at large. 84 pages.References.

R-3999-HHS/ICJ—Compensation for AccidentalInjuries in the United States. D. Hensler, M. S.Marquis, A. F. Abrahamse, S. H. Berry, P. A.Ebener, E. G. Lewis, E. A. Lind, R. J. MacCoun,W. G. Manning, J. R. Rogowski, M. E. Vaiana.1991.

One in every six Americans sustains an injury inan accident that results in measurable economicloss, and about one-third of those victims suffer amoderate to very severe injury that imposes sig-nificant costs on them and on society. The UnitedStates has developed a loose network of publicand private programs designed to help alleviatethe costs those losses impose by providing com-pensation to accident victims. This networkincludes private insurance, publicly subsidizedprograms like Medicare, work-related programslike workers’ compensation, and the fault-basedtort liability system. These programs have comeunder increasing scrutiny, as has the compensa-tion network as a whole. This report evaluates thetotal system of compensation by examining therole of individual compensation mechanisms;investigating the experience of individualAmerican households; and examining the waysexperiences vary by accident, injury, andsociodemographic circumstances. Specifically, itpresents the results of the first phase of analysis ofdata collected in a large, nationally representativesurvey, the purpose of which was to describe theuniverse of accidents and injuries the authorsstudied, develop estimates of costs and compensa-tion, describe the liability claiming process, andexamine the correlates of liability claiming. Seealso R-3999/1-HHS/ICJ. 217 pages. References.

R-3999/1-HHS/ICJ—Compensation for AccidentalInjuries in the United States: Executive Summary.D. Hensler, M. S. Marquis, A. F. Abrahamse, S. H.Berry, P. A. Ebener, E. G. Lewis, E. A. Lind, R. J.MacCoun, W. G. Manning, J. R. Rogowski, M. E.Vaiana. 1991.

The Institute for Civil Justice has developed a pro-gram of research on the design and performance

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of alternative compensation systems and the roleplayed by the tort liability system in the networkof programs, including a study of how compensa-tion programs are designed, covering such criticalelements as eligibility standards, compensationlevels, case processing, and funding mechanisms.It also includes studies of specific compensationprograms, for example, automobile no-fault. Acritical component of this work is a nationalsurvey of accident victims that seeks to determinewho these victims are, how severely they areinjured, how much their injuries cost, how thevictims seek compensation, who files liabilityclaims and why, and what results victims obtain.This report contains the first findings from thatsurvey. 33 pages. Bibliography.

R-4019-ICJ—No-Fault Approaches toCompensating People Injured in AutomobileAccidents. S. J. Carroll, J. S. Kakalik, N. M. Pace,J. Adams. 1991.

Widespread dissatisfaction with the traditionalapproach to compensating people for autoaccident injuries has revived interest in no-faultapproaches. This report estimates the effects of abroad range of no-fault plans, compared with thetraditional system. The study is primarily basedon data from two sources—closed-claim surveysand a household survey—which were combinedto construct a representative sample of peopleinjured in auto accidents. The authors use data onwhat actually happened to people injured in autoaccidents in states that have adopted no-faultsystems to develop statistical models relating theirinjuries, losses, and other factors to whether or notthey received any compensation from autoinsurance and, if so, how much, how quickly, andat what transaction costs. They then apply thesemodels to samples of people injured in autoaccidents in states that retain the traditionalcompensation system to estimate what wouldhave been their outcomes under a specified no-fault alternative. Finally, they compare theactual outcomes people experienced under thetraditional system with their estimated outcomesunder various no-fault alternatives. The findingsindicate that no-fault can yield substantial savingsover the traditional system, or may increase costs

substantially, depending on the no-fault plan’sprovisions. Regardless of plan provisions, all no-fault plans reduce transaction costs, matchcompensation more closely with economic loss,reduce the amounts paid in compensation fornoneconomic loss to less seriously injured people,and speed up compensation. 239 pages.Bibliography.

R-4019/1-ICJ—No-Fault Automobile Insurance:A Policy Perspective. S. J. Carroll, J. S. Kakalik,D. Adamson. 1991.

This report considers what would happen if a stateadopted a no-fault auto insurance system.Specifically, it examines (1) how a no-fault planwould affect the costs of compensating forinjuries, the amount spent on transactions, theadequacy and equity of injury compensation, andthe timeliness of compensation; (2) how the designof the no-fault plan would influence these effects;and (3) how these effects would vary betweenstates. The authors conclude that no-fault canyield substantial savings over the traditionalsystem or it may increase costs, depending on theno-fault plan’s provisions and on differencesamong states in factors that affect the auto-insurance system. They also conclude that no-faultplans reduce transaction costs, align injurycompensation more closely with economic loss,eliminate compensation for noneconomic loss forless serious injuries, and generally speed upcompensation. 23 pages.

R-4132-ICJ—Superfund and Transaction Costs:The Experiences of Insurers and Very LargeIndustrial Firms. J. P. Acton, L. S. Dixon, D. S.Drezner, L. Hill, S. McKenney. 1992.

Congress enacted the Superfund program in 1980to clean up the nation’s worst inactive hazardous-waste sites. Superfund uses a liability-basedapproach intended to help government tapprivate-sector resources to finance and conductcleanups. Based on an examination of the activitiesand expenditures of two sets of privateparties—large industrial firms (the potentiallyresponsible parties, or PRPs) and insurancecompanies—this report studies empirically theeffects of Superfund’s liability-based approach on

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the cost of waste-site cleanup. The analysisfocuses on insurer and PRP expenditures and thebreakdown of those expenditures into cleanupand transaction costs (incurred in resolvingdisputes about who is responsible for cleanup).The analysis includes cleanups instigated by stateprograms and those undertaken privately, as wellas those in the federal Superfund program. Theresearch suggests that there is considerablevariation in transaction-cost shares across sites.More information on the characteristics of thenation’s inactive hazardous-waste sites wouldprovide a better prediction of what transactioncosts will ultimately be. However, it may only beas time passes and more sites move into the laterstages of the cleanup process that we will be ableto develop an accurate picture of the transactioncosts generated by the liability-based approach ofSuperfund and similar state laws. 82 pages.References.

R-4285-ICJ—Product Liability and the Economicsof Pharmaceuticals and Medical Devices. S.Garber. 1993.

This study examined the economic effects ofproduct liability on firms producing drugs andmedical devices. The analysis drew on empirical

information from a wide variety of sources,simulations, and interviews at three majorpharmaceutical companies to examine the effectsof liability on product availability, safety,effectiveness, and innovation. The study foundthat the liability system enhances the economiccontributions of these industries in someways—for example, encouraging them to invest insafer designs for medical devices, underminesthem in others—for example, causing companiesto withdraw products that the medical communitygenerally believe were beneficial, and has mixedeffects in others—for example, in the areas ofpricing and innovation. The effects are industryspecific, and the perceptions of firm decision-makers about the probability and consequences ofliability suits must be addressed to understandboth the effects of the current system and theeffects of reforms. The study identified liabilitypolicy reforms that should improve economicperformance: Make regulatory compliance centralfor drugs and extensively regulated devices,specify explicit standards for behavior warrantingpunitive damages, and improve procedures forweighing scientific evidence about the cause ofinjury. 227 pages. Bibliography.

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NOTES

N-1725-HHS—Some Statistical Evidence on MeritRating in Medical Malpractice Insurance. J. E.Rolph. June 1981.

Merit rating is not widely used in setting medicalmalpractice insurance premiums. This notediscusses a statistical analysis of two different datasets showing that actual malpractice claimsexperience is inconsistent with the notion thatclaims occur randomly among physicians withineach specialty class. Consequently, a statisticalmodel allowing physician specific claimspropensities is fit to a recent data set. Calculationsusing this model indicate that the additional effectof four years of a physician’s claims experience onhis or her expected claims rate is comparable tothe effect of knowing the physician’s medicalspecialty. Consequently, merit rating deservesmore serious attention in medical malpracticeinsurance. 23 pages. References.

N-1965-ICJ—Court-Administered Arbitration: AnAlternative for Consumer Dispute Resolution.D. Hensler, J. W. Adler, G. J. Rest. February 1983.

This note presents the preliminary results of ayear-long study of the Pittsburgh (AlleghenyCounty Court of Common Pleas) arbitrationprogram. It seeks to understand how litigants farein such a program, which seeks to deliver “roughjustice” in a highly efficient fashion. This notesummarizes the findings to date, highlightingissues that may be of particular concern to thoseinterested in consumer dispute resolution. Thefindings are based on analyses of court record datafor a sample of cases filed in arbitration in 1980and 1981, and on interviews with litigants whosecases were heard in 1982. 25 pages. References.

N-1994-ICJ—Jury Awards and PrejudgmentInterest in Tort Cases. S. J. Carroll. May 1983.

This note reports the preliminary results ofresearch which empirically examines issuescentral to the prejudgment interest policy debate.The work thus far establishes that juries areimplicitly awarding prejudgment interest. Theanalysis is based on data on all awards returned incivil jury trials in the federal, state, and municipal

courts in Cook County, Illinois, from 1960 to 1979relating to injuries arising from automobileaccidents (1,349 cases). Controlling for the severityof injury, it was found that, on average, juriesincreased awards over and above inflation asmeasured by the Consumer Price Index at a rate of3.7 percent per year for the time between injuryand trial. Overall, juries implicitly provideprejudgment interest at a rate equal to theunderlying inflation rate plus 3.7 percent per year.The Note addresses the implication of these effectsfor the policy debate about prejudgment interest.47 pages. Bibliography.

N-2096-ICJ—California Enacts PrejudgmentInterest: A Case Study of Legislative Action.A. J. Lipson. January 1984.

This note presents a case study of one of the mostcontroversial actions of the 1981–1982 Californialegislative sessions: passage of mandatory pre-judgment interest on personal injury awards (SB203). This law entitles successful plaintiffs tointerest, which accrues prior to judgment from thedate of the first offer to compromise that isexceeded by judgment, to the date of the satisfac-tion of the judgment. The study sheds some lighton the politics of tort reform in California. SectionII reviews the major contested issues and howthey were received in the legislature. Section IIIanalyzes the political dynamics that help toexplain passage of this bill, considers the role ofanalysis in the debate, and finally draws someconclusions and generalizations from the exercise.31 pages. Bibliography.

N-2186-ICJ—Court-Ordered Arbitration: TheCalifornia Experience. E. S. Rolph, D. Hensler. July1984.

This note, a shortened version of a study pub-lished as R-2733-ICJ, examines the experimentalcourt-ordered arbitration program established inCalifornia in 1979, in an effort to determinewhether court-ordered arbitration reduces courtcongestion and backlogs; whether it cuts costs, byhow much, and to whom; and whether partici-pants, both litigants and attorneys, like the pro-gram. The authors found California’s year-oldprogram to be a modest success: It provides some

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objective benefits, particularly to courts, and itseems to hurt no one. 18 pages. References.

N-2257-ICJ—Court-Annexed Arbitration: TheNational Picture. P. A. Ebener, D. R. Betancourt.February 1985.

This note reports the findings of a national surveyto determine the current status of court-annexedarbitration among state and federal trial courts. Itis an update of a similar survey conducted by TheInstitute for Civil Justice in 1980 and published asR-2732-ICJ. Since then, the number of jurisdictionsaround the country that authorize court-annexedarbitration has doubled. Currently 16 states haveauthorized arbitration programs and all but twoof those have active programs under way in one ormore major courts. On the federal side, 8additional districts are implementing court-annexed arbitration programs, bringing the totalto 10. There is considerable variation among theprograms: The upper limit on the value of caseseligible for the program varies from $3,000 inAlaska to $150,000 in a number of the federaldistrict courts. Other features, such as thedisincentive to appeal arbitrator awards, thenumber of arbitrators, and their rate ofcompensation, also vary among jurisdictions.Eight more states are considering court-annexedarbitration programs, and 26 states reported thatcurrent demand on judicial resources did not war-rant such a program. Appendixes provide copiesof authorizing legislation and examples of stateand local court rules. 350 pages. Bibliography.

N-2342-ICJ—Punitive Damages: PreliminaryEmpirical Findings. M. A. Peterson. August1985.

This note presents preliminary information onpunitive damages awarded between 1959 and1984 by juries in Cook County, Illinois, and SanFrancisco County, California. Findings confirmwidespread perceptions that punitive awards havebecome both more frequent and larger, althoughonly 45 percent of large punitive awards wereactually paid by defendants. Punitive awardsoccur most frequently in trials involvingintentional tort claims (assault, discrimination,and defamation), but trends have been stable for

those cases. Punitive awards are less frequent forbusiness torts or breach-of-contract claims, but thenumber and size of such awards have grownsteadily, increasing greatly in the 1980s. Punitiveawards were rare for personal injury cases basedon negligence or strict liability but increasedgreatly in the 1980s in Cook County. Most puni-tive awards were against individual defendants,but businesses were assessed far larger awards. 49pages. References.

N-2418-ICJ—Limiting Liability for AutomobileAccidents: Are No-Fault Tort ThresholdsEffective? J. K. Hammitt, J. E. Rolph. October1985.

“No-fault” automobile insurance plans aredesigned to supplant the tort system by requiringmotorists to purchase no-fault insurance andallowing victims to file liability insurance claimsand tort suits only if their injuries exceed alegislated “tort threshold.” While thresholds varyamong states, many are satisfied if the victimincurs medical expenses as low as a few hundreddollars. Using insurance claims data, the authorsestimate the effectiveness of several states’thresholds. They find that tort thresholds aresurprisingly effective: Modest tort thresholdsreduce the number of successful tort claimants byhalf, and the strictest thresholds may excludenine-tenths of potential claimants. Moreover, theauthors find little evidence of claimants“padding” their claims to exceed the dollarthresholds. This note is a reprint of an article thatappeared in Law & Policy in October 1985. 15pages. References.

N-2444-ICJ—What We Know and Don’t KnowAbout Court-Administered Arbitration. D. R.Hensler. March 1986.

This note, a reprint of an article that originallyappeared in the February–March 1986 issue ofJudicature, summarizes the results of research con-ducted by the Institute for Civil Justice in the areaof court-administered arbitration. It describeswhat has been learned to date, and identifies someissues that remain to be examined: (1) the kinds ofcases that are not good candidates for arbitration;(2) the factors that affect decisions to appeal; (3)

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the effect of arbitration on settlement; and (4) theeffect of arbitration on the practice of law. 8 pages.Bibliography.

N-2671-ICJ—Getting Inside the Black Box:Toward a Better Understanding of Civil JuryBehavior. R. J. MacCoun. December 1987.

This note advocates the use of systematicempirical research on civil jury behavior as animportant tool in the policymaking process. Theauthor discusses the methods that have been usedfor studying jury behavior, summarizes majorfindings of previous research (primarily oncriminal juries), and considers what variousresearch strategies can contribute to ourunderstanding of jury behavior. In particular, heemphasizes the importance of mock juryexperiments for explaining patterns identified inarchival analyses and for testing the effects ofproposed policy changes. In addition, he outlinesfour topics that should be given high priority onthe research agenda: (1) identify the processes thathave brought about the apparent patterns ofinequity identified in archival analyses of juryverdicts; (2) examine the relationship betweendamages and liability; (3) study the effect of spe-cial or itemized verdict forms on the deliberationprocess, and how accurately they represent thejurors’ actual judgments; and (4) assist the courtsin improving the structure of the trial and thedecision task. 49 pages. References.

N-2773-ICJ—Aviation Accident Litigation Survey:Data Collection Forms. J. S. Kakalik, E. M. King,M. Traynor, P. A. Ebener, L. O. Picus. 1988.

In 1985, RAND’s Institute for Civil Justiceundertook a detailed study of aviation accidentlitigation in the United States. The study coveredthe general character of aviation accidentlitigation; reviewed the underlying principles andprocedures used to compute the economic lossassociated with individual decedents; describedthe characteristics of the decedents and comparedthe compensation paid to their survivors with thelevels of economic loss they suffered; andanalyzed the legal and economic determinants ofthe litigation decisions that plaintiffs anddefendants faced. This note contains the forms

used to compile the data used in the variousanalyses. See also R-3421, R-3549, R-3551, R-3585,R-3684. 85 pages.

N-2805-ICJ—Resolution of Mass Torts: Toward aFramework for Evaluation of AggregativeProcedures. M. A. Peterson, M. Selvin. 1988.

The civil justice system is increasingly being askedto resolve disputes between large aggregations ofplaintiffs and defendants. This mass litigation isplacing considerable strain on a system whoseformal and informal procedures and practices arebased on expectations about traditional disputantsthat no longer necessarily hold. Some formalmechanisms, such as class actions andmultidistricting, have been devised to deal withcertain classes of mass litigation, but there arequestions about when and how they should beapplied. This note presents the Institute for CivilJustice’s agenda for a program of research onmass tort litigation, and the results of ICJ work todate. The analysis explores the effects ofaggregation on the characteristics, course, andoutcome of mass litigation. 70 pages. References.

N-2807-ICJ—The Economic Consequences ofExpanded Corporate Liability: An ExploratoryStudy. P. Reuter. November 1988.

The legal liabilities facing U.S. corporations haveexpanded substantially over the last decade.Traditional liabilities, notably those associatedwith defective products, have become morestringent, while new liabilities, particularly thoseassociated with hazardous waste disposal and thedischarge of employees, have emerged. Thecorporate sector has expressed considerableconcern about the impact of these new liabilitieson the economic performance of the nation,arguing that they have significantly reduced theproductivity and international competitiveness ofU.S. firms. This note presents a framework foranalyzing how expanded liability might affectsuch outcomes as productivity and internationalcompetitiveness and offers some preliminaryevidence on the impact of expanded liabilities onthe behavior of corporations. The note is based inpart on a review of existing studies, and it alsoincorporates the results of interviews with a

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number of corporate officials involved in liability-related matters. 54 pages. References.

N-2909-ICJ—Judicial Arbitration in California: AnUpdate. D. L. Bryant. June 1989.

In 1979, California instituted one of the mostambitious court-based alternative dispute-resolution programs in the country. In an effort toreduce congestion on the civil trial calendars, thelegislature required litigants in the state’s largestcourts to submit their cases to nonbindingarbitration. Over the years, the jurisdiction of theprogram has been expanded, so that all casesinvolving money damages of $50,000 or less thatare filed in the state’s 16 largest court jurisdictionsmust attempt arbitration before they will beallowed to proceed to trial. This note reports thefindings of a 1987 survey of court officials that wasundertaken to determine the status of California’sjudicial arbitration program. The note alsodescribes how local courts have implemented theprogram, analyzes selected program outcomes,and examines program trends. 48 pages.Bibliography.

N-2988-ICJ—Strategies for Reducing Civil Delayin Los Angeles Superior Court: TechnicalAppendixes. J. S. Kakalik, M. Selvin, N. M. Pace.1990.

This note contains the technical appendixes to R-3762-ICJ, which presents findings about the causesof civil case delay in the Los Angeles SuperiorCourt and proposes strategies for attacking theproblem. These appendixes include more detailedanalyses and additional new data from surveys oflawyers, judges, the Register of Actions, cases thatreached the mandatory settlement conferencestage, and cases that were tried. Individualappendixes contain information on (1) causes ofdelay; (2) the flow of cases through the courtsystem; (3) end-stage civil cases and lawyers; (4)the characteristics of cases that have mandatorysettlement conferences and factors influencing thedecision to settle or go to trial; and (5) thecharacteristics of civil trials. A final appendixpresents the authors’ analyses of judge time andgovernment expenditures to process civil cases.134 pages. Bibliography.

N-3230-HHS/ICJ—Compensation for AccidentalInjuries: Research Design and Methods. D.Hensler, M. S. Marquis, A. F. Abrahamse, S. H.Berry, P. A. Ebener, E. G. Lewis, E. A. Lind, R. J.MacCoun, W. G. Manning, J. R. Rogowski, M. E.Vaiana. 1991.

To support its research on the design andperformance of accidental injury compensationsystems, the Institute for Civil Justice undertook anational survey of accident victims that sought todetermine who these victims are, how severelythey are injured, how much their injuries cost,how the victims seek compensation, who filesliability claims and why, and what results victimsobtain. This note describes the overall design andresearch procedures of the injury compensationstudy, the results of which are fully documentedin R-3999-HHS/ICJ. This note (1) presents a briefintroduction to the study; (2) discusses theauthors’ research strategy, highlighting keyanalytic decisions; (3) presents a detaileddescription of the sample design, surveycompletion rates, and weighting procedures; (4)compares estimates of key parameters withestimates from other studies of accidents andinjuries; and (5) discusses survey data collectionand compares the design of this survey with othermajor national surveys. 146 pages. Bibliography.

N-3426-MT/RWJ/RC—Merit Rating forPhysicians’ Malpractice Premiums: Only a ModestDeterrent. J. E. Rolph. 1991.

Using medical malpractice claims data from theMedical Inter-Insurance Exchange of New Jersey,which insures approximately 70 percent of thephysicians practicing in the state, this noteanalyzes physician negligence. Of the threeaspects of the physician’s claims history thatmight be used either alone or in combination tomeasure negligence—(1) the total number ofclaims filed against a physician including bothpaid and unpaid claims (where “unpaid” claimsare those for which no indemnity payment ismade in the settlement or verdict); (2) the numberof paid claims; and (3) the average amount of theindemnity paid on each claim (claims severity)—the author decided to measure an individual’snegligence solely by the number of paid claims.

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He finds evidence that physicians vary widely intheir tendency to generate paid claims, but thatindividuals’ claims histories are only moderatelyaccurate in identifying more versus less claims-prone physicians. This finding limits the potentialof deterrent policies that use past claims to targetindividual physicians. 22 pages. Bibliography.

N-3448/1-RWJ—Malpractice Claims Data as aQuality Improvement Tool: I. Epidemiology ofError in Four Specialties. R. L. Kravitz, J. E. Rolph,K. A. McGuigan. 1991.

This note attempts to identify potentiallypreventable sources of medical injury in obstetricsand gynecology, general surgery, anesthesiology,and radiology. It is based on a retrospectivereview of physician malpractice claim records of alarge New Jersey insurer of physicians practicingin those specialties during any period between1977 and 1989. The authors examined theproportion of claims due to negligence associatedwith errors in (1) patient management; (2)technical performance; and (3) medical andnursing staff coordination, and considered theclinical and financial consequences of such errors.Among 1,371 claims ascribed to negligence,patient management errors were cited mostfrequently (48 to 75 percent) in all four of thespecialties and, compared with performance andcoordination problems, were generally associatedwith a higher frequency of serious injury andhigher median payments. Coordination problemsaccounted for approximately 9 percent of claims.In obstetrics and gynecology, newborn deliveryclaims usually arose from management errors (57to 68 percent), whereas gynecologic procedureclaims were most often associated withperformance errors (55 to 73 percent). Under-performance of cesarean section was cited morefrequently than overperformance (31 percentversus 3 percent). General surgery claims wereabout equally divided between management andperformance types regardless of procedure.Failure to perform appropriate diagnostic testingor monitoring was the main problem in 3 to 8percent of claims. The authors conclude thatmalpractice data can be used to identify problem-prone clinical processes and suggest interventions

that may reduce negligence. (Reprinted fromJAMA, Journal of the American Medical Association,Vol. 266, No. 15, October 16, 1991.) 6 pages.References.

N-3448/2-RWJ—Malpractice Claims Data as aQuality Improvement Tool: II. Is TargetingEffective? J. E. Rolph, R. L. Kravitz, K. A.McGuigan. 1991.

This note attempts to evaluate the usefulness ofmalpractice claims data for identifying (1)physicians who are prone to negligent errors, and(2) physician and hospital characteristicsassociated with particular kinds of errors. It isbased on a retrospective review of physicianmalpractice claim records of a large New Jerseyinsurer of physicians practicing in obstetrics andgynecology, general surgery, anesthesiology, orradiology during any period between 1977 and1989. The authors classified the claims into 11clinical error categories and 3 broad groups: (1)patient management; (2) technical performance;and (3) staff coordination. Outcomes wereexpressed as per-physician frequency of claimsdue to negligence and proportion of claimsassociated with various types of errors. The use offive years of claims history to predict long-termclaims proneness was more accurate than usingchance alone by 57 percent in obstetrics andgynecology, 33 percent in general surgery, 11percent in anesthesiology, and 15 percent inradiology. Cross-validated recursive partitioningshowed that among physician characteristics, onlythe physician’s specialty was predictive ofphysician error profiles. For physician claimsarising in acute care hospitals, hospital size andlocation in addition to hospital services dis-criminated among different error profiles; thecross-validated accuracy of this method was 69percent compared with 22 percent accuracyachieved by random prediction. The authorsconclude that using physicians’ malpracticeclaims histories to target individuals for educationor sanctions is problematic because of the onlymodest predictive power of such claims histories.(Reprinted from JAMA, Journal of the AmericanMedical Association, Vol. 266, No. 15, October 16,1991.) 5 pages. References.

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N-3524-ICJ—Health Care Delivery and Tort:Systems on a Collision Course? ConferenceProceedings, Dallas, June 1991. E. Rolph. 1992.

Medical malpractice is one of the most studiedand best understood of the several classes of tortliability. However, the health care deliverysystem is now undergoing profound and rapidchange—change that may substantially redefinethe issues at the intersection of health caredelivery and malpractice law. In order to examine

the directions of change and how they may eitherconflict with or find support in current tort rules,the Institute for Civil Justice organized aconference on the topic of “Changing Health CareDelivery and Implications for Tort Liability.” Thisnote summarizes the conference proceedings,presents the papers drafted for the conference, andin a final section, outlines future policy andresearch concerns. 131 pages. Bibliography.

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PAPERS

P-6800—Settlement Out of Court: The Dispositionof Medical Malpractice Claims. P. M. Danzon,L. A. Lillard. July 1982.

The main purpose of this paper is to presentempirical estimates of a model of the dispositionof claims through the courts. A second purpose ofthe paper is to provide evidence relevant to thepolicy debate over tort reform. The theoreticalmodel is described in Section 2. Section 3 discussesestimation and describes the data. Section 4reports empirical results, including goodness of fitof the model and parameter estimates. Section 5provides estimates of the probability of winning atverdict for cases settled out of court. Section 6analyzes the discrepancy between mean award atverdict and settlement and the extremely skeweddistribution of dollar payout. Section 7 discussesthe effects of actual and hypothetical tort reformsand simulates their ramifications on the entiredisposition process. Section 8 contains concludingremarks. 55 pages. Bibliography.

P-6963-ICJ—Court-Annexed Arbitration in theState Trial Court System. D. R. Hensler. 1984.

Research effort has been directed towardinvestigating the use of court-annexed arbitrationin the state trial courts, and evaluating theeffectiveness of this type of arbitration formanaging the civil caseload and alleviating theburdens that the litigation process places onprivate citizens who bring their disputes to thecourts for resolution. The testimony presented bythe author to the U.S. Senate Judiciary CommitteeSubcommittee on the Courts deals with fourtopics: (1) the spread of court-annexed arbitrationthrough the state trial court system; (2) variationsin the design of court-arbitration programsnationwide; (3) the effectiveness of arbitration inreducing court congestion; and (4) how arbitrationaffects litigants. 12 pages.

P-7027-ICJ—Reforming the Civil LitigationProcess: How Court Arbitration May Help.D. R. Hensler. August 1984.

This paper, originally published in the New JerseyBell Journal, Summer 1984, describes some factors

contributing to the congestion, delay, and expensethat currently trouble the country’s civil courts. Itdescribes court-administered arbitration, anapproach that is being tested to resolve a broadrange of civil cases involving money damages:personal injury and property damage suits, breachof contract cases, and collection disputes. Itreviews the results of two RAND Institute forCivil Justice studies on the effectiveness of court-annexed arbitration, which found, among otherthings, significant cost reductions and a highdegree of satisfaction with arbitration proceduresamong attorneys and litigants. 10 pages.

P-7073-ICJ—Evaluating Civil Claims: An ExpertSystems Approach. D. A. Waterman, M. A.Peterson. March 1985.

This paper, a reprint of an article that originallyappeared in Vol. 1 of the journal Expert Systems,describes the authors’ current work in applyingexpert systems—a sophisticated form of computermodeling—to describe the reasoning involved insettlement of civil liability claims. The authorsstudied how lawyers and adjusters evaluate civilclaims in the product liability area and developeda schema that organizes the facts and issues of acase. The schema, and a large set of rules they useto elaborate the schema, form the basis for anexpert system that models legal decisionmaking.This system, called LDS, can help both researchersand litigators better understand how claim evalua-tion takes place because it provides a basis forgenerating and organizing hypotheses aboutlitigators’ methods for making settlements. Thefindings suggest that rule-based expert systemscan be developed and used to understanddecisions involved in civil litigation; thisinformation can be translated into the if-then rulesof a rule-based model, and that model can capturemuch of the richness and flexibility of legalreasoning. 12 pages. References.

P-7089-ICJ—Designing Safer Products: CorporateResponses to Product Liability Law andRegulation. G. C. Eads, P. Reuter. June 1985.

This paper, which appeared in the Journal ofProducts Liability, Vol. 7, 1985, is excerpted from alarger study with the same title, published as

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RAND report R-3022-ICJ. It analyzes ways inwhich firms have responded to recent changes inpressures to design safer products, based oninterviews with product safety officials with”major manufacturers and extensive analysis oflegal and scholarly literature. Shifts to strictliability and more stringent regulation during thepast 15 years have increased pressure to invest insafety assurance procedures, as evidenced by thecreation of new corporate product safety units.The effectiveness of regulation has been morequestionable than has strict liability in inducingbetter design practices. The authors (1) argue thatfederal product liability legislation will havemarginal effect, despite the current variation instate law on the matter; (2) discuss the factors thatinfluence the effectiveness of corporate productsafety units; and (3) suggest that combiningproduct safety with quality assurance may be theoptimal strategy for a firm. 32 pages. References.

P-7180-ICJ—The Impact of Fee Arrangement onLawyer Effort. H. M. Kritzer, W. L. F. Felstiner,A. Sarat, D. M. Trubek. January 1986.

This paper focuses on the impact of fee arrange-ment on the amount of time lawyers are likely todevote to civil cases (“effort”). Drawing on datacollected by the Civil Litigation Research Project,the authors compare the behavior of lawyersworking on an hourly fee basis with the behaviorof contingent fee lawyers. Like previous work onthis issue, the paper finds that the fee arrangementdoes influence the amount of effort a lawyerdevotes to a given case. However, contrary to pre-vious work, the analysis indicates that the impacton hours worked is not defined simply; the effecton a number of aspects of a lawyer behavior iscomplex. Together, these behaviors have an effecton hours that varies by the size of the case. Formodest cases (with stakes of $6,000 or less), con-tingent fee lawyers spend less time on a case thanhourly fee lawyers. Yet, the authors find no statis-tically significant evidence of a differential ineffort for larger cases but rather an indication that,if any effect exists, it may work in the oppositedirection. 28 pages. References.

P-7189-ICJ—Some Observations on the Need forTort Reform. G. H. Shubert. January 1986.

This paper was originally presented to theNational Conference of State Legislatures inDenver, Colorado, in January 1986, and in anearlier version to the Public Policy Institute inAlbany, New York, in November 1985. It draws onstudies of civil court congestion and delay,alternative dispute resolution, the public costs ofcivil litigation, asbestos-related litigation, punitivedamages, and medical malpractice. The authorexplores the relevance of policy research to tortreform, and concludes that the underlying prob-lem with the civil justice system is the inability todecide whether we in the United States want tohave a pure compensatory system, in whicheveryone is compensated for every injury nomatter what its cause, or a fault-based liabilitysystem, in which compensation is limited in astrict way, comparative way, contributory way tothose who have caused the injury. 11 pages.

P-7210-ICJ—Summary of Research Results on theTort Liability System. D. Hensler. March 1986.

This paper was originally presented as testimonybefore the Consumer Subcommittee of the SenateCommittee on Commerce, Science, andTransportation in February 1986. It presents theresults of research conducted by the Institute forCivil Justice relevant to the product liability sys-tem. It considers five areas of research: (1) trendsin civil jury verdicts, particularly as they relate toproduct liability lawsuits; (2) effects of productliability lawsuits on corporate behavior; (3) publicexpenditures to process tort liability suits; (4) spe-cial problems posed by mass toxic lawsuits; and(5) the use of alternative dispute resolutionprocedures for resolving tort cases. 11 pages.References.

P-7211-ICJ—The Effects of Tort Reforms on theFrequency and Severity of Medical MalpracticeClaims: A Summary of Research Results. P. M.Danzon. March 1986.

This paper, originally presented as testimonybefore the Committee on the Judiciary of theUnited States Senate, reviews the results of threestudies on the frequency and severity of medicalmalpractice claims. The findings of the threestudies suggest that caps on awards and collateral

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source offset have significantly reduced claimsseverity, and collateral source offset and shorterstatutes of repose have significantly reducedclaims frequency. The author cautions that, from apublic policy perspective, the goal of tort reformshould not be simply to reduce the costs of claimsand of malpractice insurance. Rather, reformsshould be evaluated in the broader context of thefundamental purposes of the tort system, whichare deterrence of medical negligence and efficientcompensation of its victims. 11 pages. References.

P-7222-ICJ—A Summary of Research Results:Trends and Patterns in Civil Jury Verdicts. M. A.Peterson. March 1986.

This paper was originally presented as testimonybefore the Subcommittee on Oversight of theUnited States House of RepresentativesCommittee on Ways and Means. It draws on theauthor’s analysis of civil jury verdicts renderedbetween 1960 and 1979 in Cook County, Illinois,and San Francisco, California. The testimonyfocuses on trends and patterns over time, and onhow the type of liability, nature and circumstancesof injury, and characteristics of plaintiffs anddefendants affect the outcomes of civil jury trials. 6pages. References.

P-7241-ICJ—Changes in the Tort System: HelpingInform the Policy Debate. G. H. Shubert. June1986.

This paper is extracted from the Director’s Reportin the Institute for Civil Justice’s Report on the FirstSix Program Years, April 1980–March 1986. Itreviews findings of the ICJ’s research on the civiljustice system regarding (1) civil jury verdicts; (2)the private and public costs of civil litigation; and(3) the effectiveness of the processes of the system.This research underlines the need forpolicymakers to anticipate the impact of legislativechanges on costs, outcomes, and processes. Inaddition, it emphasizes the need to build intoevery reform the capacity to evaluate its actualimpact and to provide for subsequent correction.4 pages.

P-7243-ICJ—Costs and Compensation Paid in TortLitigation: Testimony Before the Joint EconomicCommittee of the U.S. Congress. J. S. Kakalik,N. M. Pace. July 1986.

This paper is the text of testimony presentedbefore the subcommittee on Trade, Productivity,and Economic Growth of the Joint EconomicCommittee of the U.S. Congress on July 29, 1986. Itsummarizes preliminary results of RAND researchundertaken to provide empirical evidence on thefollowing issues: (1) the total expenditure for tortlitigation in state and federal courts in 1985; (2) theproportion of costs that went to plaintiffs’ anddefendants’ legal fees and other litigationexpenses, the value of time spent by both litigantsand insurance personnel, and the costs ofoperating the courts; (3) what proportion of thetotal was net compensation to plaintiffs; (4) thedifference in litigation costs and compensation fortorts involving motor vehicles and all other torts;and (5) the rate at which the tort system isgrowing. The study indicates that plaintiffs withtort lawsuits in state and federal courts of generaljurisdiction received approximately half of the$27 to $34 billion spent in 1985. The costs oflitigation consumed the other half. 10 pages.Bibliography.

P-7271-ICJ—Summary of Research Results onProduct Liability. D. Hensler. October 1986.

This paper is an edited transcript of writtentestimony delivered in October 1986 to the UnitedStates Senate Judiciary Committee. The authorsummarizes the results of empirical researchconducted by the Institute for Civil Justice on fourtopics relevant to the discussion of the productliability system, including trends in litigation,expenditures for liability cases, the effects ofproduct liability lawsuits on corporate behavior,and the special problems of mass toxic torts. 13pages. References.

P-7272-ICJ—Failing Faith: AdjudicatoryProcedure in Decline. J. Resnik. February 1987.

This paper, reprinted from The University ofChicago Law Review, Vol. 53, No. 2, 1986, discussesthe changes in federal litigation during the almost50 years that the Federal Rules of Civil Procedure

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have been in effect. The paper considers why thedrafters of the Rules did what they did, how theRules in turn helped to create the environmentthat has given rise to the contemporary criticism ofcivil litigation, and how they might be revised.The author suggests that any revision of the Rulesought to be undertaken with the intent ofpreserving their accomplishments, includingready access to the judicial apparatus. 67 pages.Bibliography.

P-7287-ICJ—Trends in California Tort LiabilityLitigation. D. Hensler. March 1987.

This paper, testimony presented before theCalifornia State Legislature’s Assembly SelectCommittee on Insurance, covers trends in liabilitylitigation in California. Over the past decade,personal injury lawsuits filed statewide haveincreased substantially. Automobile accidentfiling rates are roughly equal to the increase inpopulation, but the rate of increase in other typesof lawsuits has considerably outstrippedpopulation growth. A smaller fraction of personalinjury lawsuits are fully contested, and thenumber of such cases tried to verdict has droppedin San Francisco, and probably elsewhere. RecentSan Francisco verdicts are similar to those in othermajor jurisdictions. Increases in jury awards havebeen higher for product liability and medicalmalpractice cases—a significant proportion of thepersonal injury caseload—than for the slower-growing automobile accident cases. The vastmajority of cases are settled, not tried. Althoughmost practitioners assume that settlementamounts in personal injury cases are stronglyinfluenced by jury verdicts, no comprehensivestudy examines how such trends are related totrends in settlement. The growth in jury verdictshas probably been reflected in trends in totalcompensation. 13 pages. Bibliography.

P-7418—Due Process: A Public Dimension.J. Resnik. March 1988.

This paper originally appeared in The University ofFlorida Law Review, Vol. 39, No. 2 (Spring 1987),and was presented at the “Conference onProcedural Due Process: Liberty and Justice,”University of Florida, February 13–14, 1987. The

author explores the public dimension of the dueprocess theory: the role of the public in theadjudicative process and the function of theadjudicative process for the public. The authorconsiders the role the public plays as an audience,the modes of adjudication, the problemsassociated with public access, and the forms ofpublic participation. 27 pages. Bibliography.

P-7419-ICJ—Judging Consent. J. Resnik.1986.

This paper was originally presented at a sympo-sium on consent decrees, and appeared in theUniversity of Chicago Legal Forum, Vol. 1987. Itexplores the growing interest in consent degrees,by which lawsuits are resolved with the issuanceof a judgment or decree, entered with the agree-ment of the parties. Arguments have been madethat consent decrees are more economical thanadjudicated decrees and achieve greater rates ofcompliance, but the empirical bases for suchclaims have not yet been established. The authorexamines the standard arguments for consentdecrees and considers the role of judges in review-ing and entering them. She discusses the fact thatjudges must rely on the involved parties to presentsufficient information for judging the adequacy ofan agreement. The author concludes that, in manycases (for example, class actions), judges mustdetermine the adequacy of either the repre-sentation of the decree or of the settlement itself.However, as judicial involvement in crafting set-tlements grows, the ability of judges to make dis-interested determinations of the adequacy of set-tlements diminishes. 60 pages.

P-7445—Malpractice, Outcomes, andAppropriateness of Care. A. P. Williams. May1988.

This paper reports on the need for more researchon outcomes and appropriateness of medical careto develop a more rational system for preventing,punishing, and compensating for medicalmalpractice. Malpractice claims are clearly linkedto outcomes of care, and a large proportion ofcourt decisions settling these claims confuse badoutcomes with inappropriate care because of thelack of definitive research on how specific medical

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interventions affect patient outcomes. The authorsuggests that the medical malpractice systemmight be improved by conducting more researchon outcomes and appropriateness of care toinform medical decisionmaking and to setstandards relevant only to a certain class ofmalpractice problems, ones in which it was notappropriate to take a specific action. Developingmore explicit standards of care treats both doctorand patient more equitably by offering a statementabout range of expected risks and benefits of theintervention under consideration as well asproviding a structure to ease problems ofmalpractice. 7 pages. References.

P-7604—Researching Civil Justice: Problems andPitfalls. D. R. Hensler. 1988.

This paper, reprinted from Law and ContemporaryProblems, Vol. 51, No. 3, Summer 1988, wasprepared for a symposium on Empirical Studies ofCivil Procedure at Duke University in spring 1988.The author discusses some issues civil justiceresearchers face when their results are used inpublic policy debate. She points out thatresearchers have a responsibility to indicate thesorts of inferences that can and cannot be drawnfrom the data they collect and analyze. They alsohave a responsibility to educate policymakersabout the uses of statistical data, and to beconscious of how they describe magnitudedifferences, select standards for comparisons,and define time periods for graphing trends.Researchers should also help policymakers decidewhen it makes sense to extrapolate from limiteddata and when it does not. Finally, they should beaware of the ways in which their own political andsocial values affect their choices of researchquestions, research designs, and final reports. 11pages. Bibliography.

P-7631-ICJ—Resolving Mass Toxic Torts: Mythsand Realities. D. Hensler. October 1989.

Since the early 1980s, the thinking surroundingmass toxic torts has changed dramatically, and aconsensus has emerged calling for substantialmodifications in traditional court processes toimprove the efficiency and equity of the massclaims resolution process. Debate about the type of

modifications focuses on expanding the use offormal aggregative procedures such as classactions, consolidations, and multidistrict litigation.The debate over expanded use of aggregativeprocedures also revolves around the choicebetween different “versions of legal reality.”When scholars and practitioners assess theappropriateness of applying various formalaggregative approaches to mass torts, they use the“traditional tort approach” as their standard forcomparison. This paper argues that this version oflegal reality is factitious, both with regard toprocess and substantive outcomes. The authordiscusses what empirical research demonstratesabout the divergence between the traditionalimage of the tort approach and the actualworkings of the tort system, in both routine andmass tort cases. The discussion focuses on threeissues: (1) lawyer-client relations and litigantcontrol; (2) opportunities for adjudication; and (3)substantive outcomes. (Reprinted from Universityof Illinois Law Review, Vol. 1989, No. 1, 1989.) 16pages.

P-7775-ICJ—What We Know and Don’t KnowAbout Product Liability. D. R. Hensler. 1993.

An edited transcript of written testimonydelivered in September 1991 to the ConsumerSubcommittee of the United States SenateCommerce Committee. The author covers fivetopics: trends in product liability; the nature andextent of product-associated injuries and the rateof claiming associated with these; the role of thetort liability system in compensating injuries; theeffects on manufacturer behavior; and the need foradditional information about the product-liabilityphenomenon. 11 pages. Bibliography.

P-7776-ICJ—Asbestos Litigation in the UnitedStates: A Brief Overview: Statement. D. R. Hensler.1992.

This paper, an edited transcript of writtentestimony delivered in October 1991 to the Courtsand Judicial Administration Subcommittee,United States House Judiciary Committee,summarizes the scope of asbestos litigation in theUnited States, the response of the civil justicesystem to date, and the obstacles to efficient and

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equitable resolution of asbestos-related personalinjury claims. An equitable and efficient nationalsolution to the asbestos litigation problem willhave to demonstrate sensitivity to the past historyof asbestos litigation, cope with the current crushof claims, and include a strategy for responding tofuture claims. Most important, the success of anysolution will depend on a realistic assessment ofthe number and type of future asbestos-relatedclaims. 19 pages. Bibliography.

P-7812—The Bad Apples? Malpractice ClaimsExperience of Physicians with a Surplus LinesInsurer. E. Lewis, J. E. Rolph. 1993.

To compare the malpractice claims experience ofphysicians in a high malpractice risk population tothose in a normal population, the authors usedclaims data from one national surplus linesmalpractice insurer and one large standard linesmalpractice insurer. In addition, a second surpluslines insurer supplied data on policyholdercharacteristics that was used to compare thecharacteristics of physicians across populations.Surplus-lines insured physicians had frequenciesof filed claims over twice that of doctors incomparable specialties insured by the standardlines insurer. Surplus-lines insureds had muchshorter coverage periods (72 percent leavingwithin a year or less) as compared with those withconventional coverage (less than 11% percentleaving within a year or less). Surplus-linesinsureds were somewhat older, more frequentlyboard certified, and were proportionately more inhigh-risk specialties than the physician populationof the country. 23 pages. Bibliography.

P-8048—Establishing a Good-Faith Defense toPunitive Damage Claims. J. W. Martin, Jr. 2000..

This paper argues that if the main purpose ofpunitive damages in product liability cases is todeter conduct that results in unsafe consumerproducts, the threat of punitive damages ought tobe better targeted at the conduct of seniormanagement, rather than the misconduct ofemployees. In most jurisdictions, punitivedamages may be imposed on a firm for

misconduct by employees who are not part ofsenior management. In a sizeable number of thesecases, punitive damages are imposed even thoughthe employees whose conduct led to litigationwere acting contrary to firm policy. Although theimposition of compensatory liability is clearlyappropriate when a firm’s products injureconsumers, allowing punitive damages forconduct contrary to management’s directiondilutes management’s incentive to exerciseappropriate control over the behavior ofemployees. Management can’t guarantee thatevery employee will make appropriate decisionsregarding safety issues, but it can establish well-designed policies and procedures to guide thesedecisions. A standard designed to influence thebehavior of management should provide anincentive for management to take actions withinits power to assure that its firm’s products aresafe. Building on concepts enunciated in a recentSupreme Court case involving employmentdiscrimination, this paper argues that thedeterrent effect of punitive damages would beenhanced by a rule that provides an affirmativedefense against punitive damage claims based onreckless conduct of employees, when that conductis contrary to a firm’s good-faith efforts to employwell-designed safety policies and procedures. Itfurther argues that the so-called “governmentstandards” defense against punitive damagesshould be defined in a way that both promotescompliance with government standards and helpsto assure that the standards provide adequatepublic safety. This goal could be accomplished byproviding that compliance with an applicablefederal safety standard constitutes prima facieevidence of good faith and shifts the burden ofproof to the plaintiff to show, by clear andconvincing evidence that either (1) the defendantwas guilty of fraud on a regulatory agency; (2)clear advances in the state of the art, implementedafter the standard had been adopted but before thedefendant’s product was designed, had renderedthe product obsolete; or (3) the standard itselfreflects a flagrant indifference to safety.16 pages.

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ISSUE PAPERS

IP-130—Is There a “Deep Pocket” Bias in the TortSystem? The Concern over Biases Against Deep-Pocket Defendants. R. J. MacCoun. October1993.

A wide-spread perception exists that America’stort system is biased against so-called deep-pocketdefendants—defendants such as corporations,governments, and wealthy individuals who haveextensive financial resources. This issue papersummarizes what we know and don’t know aboutdeep-pocket biases. Archival analyses of 20 yearsof verdicts in Cook County, Illinois, and mock juryexperimentation both indicate that, in similarcases, juries do in fact treat corporationsdifferently from individuals. Juries are more likelyto find corporations liable and award plaintiffsmore money. However, other mock jury experi-ments show that rich individuals are treated morelike poor individuals than like corporations.Therefore, jurors do treat corporations differently,but not because of wealth. Future research isnecessary to clarify what causes juries to treatcorporations differently from individuals.

IP-146-1—The Effects of a Proposed No-Fault Planon the Costs of Auto Insurance in California: AnUpdated Analysis. S. J. Carroll, A. F. Abrahamse.January 1996.

This issue paper estimates how a pure no-faultautomobile insurance plan, proposed forCalifornia in 1995, would affect the costs ofautomobile insurance in the state. The plan wouldhave eliminated tort liability for auto accidentpersonal injuries. Based on data from a randomsample of auto accident victims compensated in1992, the analysis suggests that the proposed planwould have reduced the costs of compensatingauto accident victims for personal injures by 21 to54 percent compared with California’s currentauto insurance system. If the premium an insurercharges for a policy varies in proportion to thecompensation costs it can expect to incur on behalfof the policyholder, the plan would have reducedthe average California driver’s auto insurancepremiums by 11 to 29 percent.

IP-157—The Effects of Proposition 213 on theCosts of Auto Insurance in California. A. F.Abrahamse, S. J. Carroll. September 1996.

Proposition 213, the Personal Responsibility Actof 1996, which qualified for the November 1996California ballot, would have barred drunkdrivers and uninsured motorists from compensa-tion for any noneconomic losses resulting fromauto accident injuries. It would also have barredcompensation for any loss incurred by felons whowere involved in auto accidents while committingcrimes or fleeing from them. This issue paperdescribes the likely effects of the proposition’sprovisions regarding uninsured or drunk driverson the costs of private-passenger auto insurance.The analyses suggest that the proposition wouldhave reduced auto insurance costs. If currentclaiming, negotiating, and insurance-purchasepatterns persist, the proposition would havereduced auto insurers’ compensation costs forpersonal injuries by about 10 percent relative tothe costs under California’s current auto insurancerules. Given the past relationship betweencompensation costs and auto insurance premiumsin California, this difference would translate into areduction of about 5 percent in the averageCalifornia driver’s auto insurance premiums.

IP-174—The Effects of a No-Pay/No-Play Plan onthe Costs of Auto Insurance in Texas. S. J. Carroll,A. F. Abrahamse. 1998.

The authors apply models from their earlierresearch on California (see IP-157) regarding theimplications of auto insurance reform to Texas.“No pay/no play” refers to insurance policies thatcost less because they limit compensation rightsfor insureds who were breaking the law whenthey were injured. Basing their analysis of theeffects of barring noneconomic compensation toaccident victims who were driving drunk oruninsured at the time of the accident on a sampleof paid claims in Texas during 1992, the authorsconclude that implementing the proposed reformswould save the average Texan insured driverabout 3 percent on his or her annual premium.The paper also notes projections for cost if theimplementation of these reforms altered claimsand policy-purchase patterns among Texas

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drivers, concluding that auto insurers would saveat least 6 percent in claims paid under a variety ofscenarios that would permit them to achieve thesame profit levels through premiums that werereduced by 3 percent.

IP-184—A Flood of Litigation? Predicting theConsequences of Changing Legal RemediesAvailable to ERISA Beneficiaries. C. R. Gresenz,D. R. Hensler, D. M. Studdert, B. Dombey-Moore,N. M. Pace. 1999.

Whether to allow lawsuits against private,employer-sponsored health plans for delay ordenial of benefits is one of the most controversialissues of the current patients’ rights debate. Most

proposed changes to regulations governing suchlitigation would include amending ERISA, aprovision that has been interpreted by federalcourts to strictly limit recovery in private suits.Since assertions concerning ERISA reform arebased on views about litigation and the legalsystem, this work examines the basis forproponents’ and opponents’ assumptions. Theanalysis finds that support for claims on bothsides is weak. Although some increase in litigationis likely, little hard evidence is available to predictthe effect of changes to ERISA. The work alsopostulates a behavioral model for estimatinglitigation rates in a changed ERISA environment.

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OCCASIONAL PAPERS

OP-135-ICJ—Issues and Options for GovernmentIntervention in the Market for TerrorismInsurance. L. Dixon, J. Arlington, S. J. Carroll, D.Lakdawalla, R. T. Reville, D. M. Adamson. 2004.

Following the 9/11 terrorist attacks, the federalgovernment adopted the Terrorism Risk InsuranceAct (TRIA), which requires insurers to maketerrorism coverage available to commercialpolicyholders. In exchange, the federalgovernment will reimburse insurers for a portionof insured losses above a particular threshold.TRIA’s impending “sunset”—on December 31,2005—presents an opportune time to evaluatewhat role the U.S. government should play in the

terrorism insurance market and what approachshould be taken to manage risks and to providecompensation for personal injury and propertyand financial losses due to acts of terrorism. Thispaper has a dual purpose: to help frame thecentral issues that should be considered in thedebate over whether to extend, modify, or endTRIA, and to explore the broader issue of theappropriate role of disaster insurance within asystem for managing risks created by thepossibility of terrorist attacks and compensatinglosses caused by terrorist attacks. The paper alsodiscusses options that policymakers mightconsider in addressing these issues and goalsagainst which various options may be evaluated.54 pages. References.

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WORKING PAPERS

WR-163-1-ICJ—Assessment of 24-Hour CareOptions for California. D. O. Farley,M. Greenberg, C. Nelson, S. Seabury. 2004.

Proponents of a type of health-care insuranceprogram called “24-hour care” believe that sucha program could yield substantial workers’compensation savings. A 24-hour care plan wouldconsolidate employers’ health care benefits, andpossibly disability benefits, for both work-relatedand non-work-related claims, and services wouldbe delivered by one group of providers under acoordinated insurance package. In December 2003,the California Commission on Health and Safetyand Workers’ compensation asked the RANDInstitute for Civil Justice to conduct a study of24-hour care. This paper assesses the value of24-hour care as a mechanism for reducingworkers’ compensation costs while maintainingor improving the quality of care. It also seeksto clarify some of the important legal andorganizational challenges for 24-hour care andidentify ways those challenges might be met.86 pages. References.

WR-171-ICJ—Insurance, Self-Protection, andthe Economics of Terrorism. D. Lakdawalla,G. Zanjani. 2004

This paper investigates the rationale for publicintervention in the terrorism insurance market.The authors argue that government subsidiesfor terrorism insurance are aimed, in part, atdiscouraging self-protection and limiting thenegative “externalities” associated with self-protection. The authors further contend thatself-protective behavior by a potential terroristtarget can have negative social consequences(e.g., a potential target that takes protective stepsmay increase the risk of loss for another, morevulnerable target). The authors also argue thatnegative externalities distinguish the terrorisminsurance market from other insurance markets,and help to explain why availability problemsin this market have elicited a much strongergovernment response that similar problems inother catastrophe-insurance markets. 47 pages.References.

WR-203-IJC—Evaluating Medical TreatmentGuideline Sets for Injured Workers in California.T. K. Nuckols, B. O. Wynn, Yee-Wei Lim, R. Shaw,S. Mattke, T. Wickizer, P. Harber, P. Wallace,S. Asch, C. MacLean, R. Hasenfeld. 2004.

In recent years, the California workers'compensation system has been encumbered byrising costs and high utilization of medical care.To address these concerns, the Californialegislature passed a series of initiatives that call forthe use of evidence-based medical-treatmentguidelines concerning, at a minimum, thefrequency, duration, intensity, andappropriateness of all treatment procedures andmodalities commonly performed in workers'compensation cases. The American College ofOccupational and Environmental Medicineguidelines were adopted as presumptively correctuntil alternative plans could be evaluated and adecision made about which guidelines to adopt forthe long term. This working paper presents anevaluation of the medical guidelines that might beused to determine the appropriateness of careprovided to California's injured workers. Thestudy identified 73 guidelines for work-relatedinjuries, which were then screened using multiplecriteria. Five comprehensive guideline sets werefound to satisfy the requirements of Californialegislation and the preferences of the state. Acomparative evaluation was made of both thetechnical quality and clinical content of theselected guidelines. Based on the results of theevaluation, the authors present recommendationsfor actions the state might take in the short term,the intermediate term, and the longer term. 155pages. References.

WR-205-ICJ—How Does Health Insurance AffectWorkers' Compensation Filing? D. Lakdawalla,R. T. Reville, S. A. Seabury. 2004.

Workers' compensation provides insuranceagainst job-related injuries, but one-third to one-half of injured workers choose not to file forworkers’ comp. Previous analyses have indicatedthat this situation is partly the result of privatehealth insurance, an alternative source of healthcare that may discourage insured workers fromtaking the time to file a workers' compensation

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claim. However, data from the NationalLongitudinal Survey of Youth (NLSY) paint amuch different and more troubling picture:Uninsured and more vulnerable workers are lesslikely to file claims than are insured workers. Thisauthors of this working paper found that workersat firms that offer health insurance to theiremployees are more likely to file workers'compensation claims—i.e., the characteristics of afirm are more important than the insurance statusof the workers themselves. Moreover, even repeat-injury sufferers are more likely to file duringepisodes in which their employer offers healthinsurance. This finding suggests that theworkplace environment and employer incentivesmay have a significant impact on utilization of theworkers' compensation system. 37 pages.References.

WR-214-ICJ—Data for Adjusting DisabilityRatings to Reflect Diminished Future Earningsand Capacity in Compliance with SB 899. S. A.Seabury, R. T. Reville, F. Neuhauser. 2004.

The passage of California Senate Bill (SB) 899introduced sweeping reforms to the California

workers’ compensation system. One of thesereforms was the requirement that the system forevaluating the severity of permanent disabilitiesincorporate empirical data on the long-term loss ofincome experienced by workers with injuries todifferent parts of the body. However, no previouswork has provided enough information on thepredicted loss of earnings capacity for differenttypes of injuries to generate a complete set ofadjustments to the rating schedule. This workingpaper summarizes the average disability ratingsand three-year cumulative proportional earningslosses for 23 different categories of disabilities. Itincludes a discussion justifying the use ofstandard ratings (ratings before age andoccupation adjustments), proportional earningslosses calculated at the individual level, andestimates of ratings and losses for injuries to threeseparate regions of the spine. 20 pages. References.

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DOCUMENTED BRIEFINGS

DB-139-ICJ—The Costs of Excess Medical Claimsfor Automobile Personal Injuries. S. J. Carroll,A. F. Abrahamse, M. E. Vaiana. 1995.

Escalating auto insurance premiums have set offheated policy debates in most states. A sharedconcern of all is the fear that excess claims may bea major contributor to auto insurance costs, but ithas been unclear how much excess claiming thereis and how much it costs. This documentedbriefing describes an analysis of the pattern ofexcess medical claiming across the states toestimate the extent of excess medical claiming andthe costs of excess claims to consumers. Theauthors found that (1) 35 to 42 percent of medicalcosts claimed by auto accident victims appear tobe in excess; (2) approximately $4 billion inunnecessary health care costs were incurred as aconsequence of excess claims; (3) these excessclaims also cost insurers an additional $9–13billion in compensation for noneconomic lossesand other costs; and (4) if insurers pass theseincreased costs on to consumers in the form ofproportional increases in premiums, then in 1993excess medical claims cost auto insurancepurchasers across the country anywhere from$13–18 billion.

DB-220-ICJ—Preliminary Results of the RANDStudy of Class Action Litigation. D. R. Hensler,J. Gross, E. Moller, N. M. Pace. 1997.

This documented briefing summarizes thepreliminary findings of an Institute for CivilJustice study of the economic and social effects ofclass action litigation. The study found that thelandscape of class action activity has shifteddramatically in the past several years. Litigation isincreasing rapidly, especially in the state courts,and most of the growth is taking place in theconsumer area, with burgeoning claims allegingfraud, deceptive advertising, and impropercalculation of fees and other charges. Plaintiffs,claims, remedies, and damages are all becomingmore diverse. The authors caution about proposalsto alter the federal court rules governingcertification of class actions based on dollar valueof individual claims or on specific types of cases.

Such reforms will be difficult to implement, theysay, because the new kinds of class actionsidentified in the study don't map easily by casetype, dollar value, or other features.

DB-362.0-ICJ—Asbestos Litigation in the U.S.:A New Look at an Old Issue. D. R. Hensler, S. J.Carroll, M. White, J. Gross. 2001.

Asbestos personal-injury litigation is now thelongest-running mass tort litigation in UnitedStates history. The number of claims arising fromboth deadly and nonmalignant diseases has risensharply in recent years. This briefing documentsthe first phrase of a new study on asbestoslitigation. It offers preliminary answers toquestions on a number of lingering issues: Howwell is asbestos litigation serving injured workerson whose behalf the claims are filed? What is thebalance between the compensation that is paid outand the cost to deliver it? What economic costsdoes asbestos litigation impose on the country,and who bears those costs? Do strategies exist forresolving asbestos suits that would be moreefficient and more equitable? 60 pages.

DB-397-ICJ—Asbestos Litigation Costs andCompensation: An Interim Report. S. J. Carroll,D. R. Hensler, A. F. Abrahamse, J. Gross,M. White, S. Ashwood, E. Sloss. 2002.

The number of asbestos claims filed annually, thenumber and types of firms named as defendantsin asbestos litigation, and the costs of the litigationfor those defendants have all risen sharply inrecent years. These trends have led manyindividuals to question whether compensation forasbestos-related injuries is being divided amongclaimants fairly and in proportion to need, andwhether responsibility for paying compensation isbeing allocated among defendants fairly and inproportion to culpability. In this briefing, theauthors examine the dimensions of asbestoslitigation today: How many claims have beenfiled? By whom? Against whom? For what kindsof conditions? At what cost and with whateconomic effects? If current trends continue, whatwill be the future costs of the litigation? To answerthese questions, the authors describe thedimensions of the litigation through the year 2000,

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the changing composition of claims, the number ofdefendants and the spread of litigation acrossindustries, the total costs of the litigation toinsurers and defendants, and the potential effectsof the litigation on the U.S. economy now and inthe future. This briefing concludes by outliningvarious policy alternatives to the current litigationregime.

DB-443-ICJ—Evaluation of California’sPermanent Disability Rating Schedule: InterimReport. R. T. Reville, S. Seabury, andF. Neuhauser. 2003.

In a series of studies for the CaliforniaCommission on Health and Safety and Workers’Compensation, the Institute for Civil Justice hasexamined the adequacy of permanent partialdisability (PPD) benefits, the workers’compensation court system, and medical feeschedules. In this study, the authors focus onCalifornia’s system for evaluating permanent

disabilities—the permanent disability ratingschedule. This schedule, which is used todetermine eligibility for PPD benefits as well asthe amount of benefits, is at the center oflegislative debates on how to reduce the costs ofthe California workers’ compensation system.Here, the authors address several pertinentquestions: Does the system ensure that the highestcompensation goes to the most severely disabledindividuals? Do injured workers withimpairments to different parts of the body butsimilar employment outcomes receive similarcompensation? Will different physiciansevaluating the same injury produce similarratings? And finally, how can the rating system bechanged to improve outcomes for California’sinjured workers and their employers? 56 pages.References.

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TESTIMONY

CT-102—Superfund and Transaction Costs: TheExperiences of Insurers and Very Large IndustrialFirms. L. S. Dixon. 1992.

Lloyd S. Dixon, a RAND economist, testifiedbefore the U.S. House of RepresentativesCommittee on Public Works and Transportationregarding the transaction costs involved in thecleanup of hazardous waste sites. Transactioncosts are those costs that do not contribute directlyto the analysis or cleanup of a site. Insurertransaction costs, he stated, were high: 88 percentof the total expenditures. They were split betweencoverage disputes and defense of policyholders.For large firms that were potentially responsibleparties (PRPs), the transaction costs, primarily forlegal counsel, averaged 21 percent of total outlays,but decreased proportionally as cleanupprogressed. These costs varied across sites,averaging 7 percent of the total when only a singlePRP was involved and 39 percent when multiplePRPs were involved. Dixon concluded histestimony by suggesting that these facts may nottell much about the future because (1) insurancecoverage issues are still unresolved; (2) PRPsinvolved in cleanup may yet sue non-participatingPRPs; and (3) and insurers may pursue theirreinsurers as their own losses mount.

CT-103—Economic Consequences of Work-Related Injuries. M. S. Marquis. 1992.

This publication is a transcript of written testi-mony delivered in May 1992 to the United StatesSenate Committee on Labor and HumanResources. It addresses three questions: (1) Howfrequently do work-related injuries occur? (2)What are the costs of those injuries? and (3) Whopays for those costs? The answers are drawn froma congressionally requested study, “Compensationfor Accidental Injuries in the United States,”published by RAND in 1989.

CT-111—RAND Research on SuperfundTransaction Costs: A Summary of Findings toDate. L. S. Dixon. November 1993.

This publication contains the written statement ofLloyd S. Dixon submitted on November 4, 1993, to

the Subcommittee on Superfund, Recycling, andSolid Waste of the U.S. Senate Environment andPublic Works Committee. The author addressesthe following questions: What is our best estimateof transaction-cost share at Superfund sites todate? What will the transaction-cost share likely bewhen cleanup is complete? How does transaction-cost share vary by size of firm? What reformsmight be considered to reduce transaction costs?

CT-125—Superfund Liability Reform: Implicationsfor Transaction Costs and Site Cleanup. L. S.Dixon. 1995.

This publication contains the written statement ofLloyd S. Dixon, submitted on March 10, 1995, tothe Subcommittee on Superfund, Waste Control,and Risk Assessment of the United States SenateEnvironment and Public Works Committee. Theauthor summarizes previous RAND estimates ofprivate-sector and government transaction costs atSuperfund sites to date and when cleanup iscomplete. The author then considers what variousliability reforms imply for transaction costs andsite cleanup.

CT-136—Improving Jury Comprehension inCriminal and Civil Trials. R. J. MacCoun. July1995.

This publication, the text of a written statementsubmitted by the author on July 27, 1995, to theJudiciary Committee of the California State Senate,evaluates seven proposals for improving jurorperformance: revised jury instructions, juror note-taking, question-asking, juror discussion duringtrial, minimum education requirements,complexity requirements, and guidance indetermining awards.

CT-137—Economic Perspectives on RevisingCalifornia’s Zero-Emission Vehicle Mandate.L. S. Dixon and S. Garber. 1996.

This publication contains the written statement ofLloyd S. Dixon and Steven Garber delivered onMarch 28, 1996, to the California Air ResourcesBoard. The statement is based on a recentlycompleted RAND Institute for Civil Justice studyof California’s ozone-reduction strategy for light-duty vehicles. The authors drew on the studyresults to comment on the proposed revision to the

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Zero-Emission Vehicle mandate that was underconsideration by the California Air ResourcesBoard.

CT-141-1—Effects of an Auto-Choice AutomobileInsurance Plan on Costs and Premiums. S. J.Carroll. 1997.

This publication contains the written statement ofStephen Carroll delivered on March 19, 1997, tothe Joint Economic Committee of the United StatesCongress. The statement is based on severalRAND Institute for Civil Justice studies ofalternative approaches to compensatingautomobile accident victims for their personalinjuries. The author summarizes previous RANDestimates of the effects of an automobile insuranceplan that offers drivers a choice between theirstate's current automobile insurance plan and anabsolute no-fault plan.

CT-143—Punitive Damages in Financial InjuryJury Verdicts. S. J. Carroll. 1997.

This publication contains the written statement ofStephen Carroll delivered on June 24, 1997, to theJudiciary Committee of the United States Senate.The statement is based on a RAND Institute forCivil Justice study of punitive damages infinancial injury cases. The author summarizesRAND estimates of the frequency and size ofpunitive damage awards in financial injury cases.He also presents estimates of what percentage ofthe financial injury punitive awards in the study’sdatabase would have been affected by caps ofvarious sizes and how the caps would haveaffected the total amount of punitive damagesawarded in such cases.

CT-144—Effects of a Choice Automobile InsurancePlan on Costs and Premiums: TestimonyPresented to the Senate Commerce, Science, andTransportation Committee, July 1997. S. J. Carroll.1997.

This publication contains the written statement ofStephen Carroll delivered on July 17, 1997, to theCommerce, Science, and TransportationCommittee of the United States Senate. Thestatement is based on several RAND Institute forCivil Justice studies of alternative approaches tocompensating automobile accident victims fortheir personal injuries. The author summarizesprevious RAND estimates of the effects of anautomobile insurance plan that offers drivers achoice between their state’s current automobileinsurance plan and an absolute no-fault plan.

CT-202-ICJ—Inflation in Hospital Charges:Implications for the California Workers’Compensation Program. B. O. Wynn. 2003.

This publication contains the written testimony ofBarbara O. Wynn, RAND Corporation SeniorHealth Policy Analyst, delivered on January 15,2003, during a California Senate Labor andIndustrial Relations Committee hearing to reviewthe billing practices of hospitals owned by TenetHealth and the implications for the Californiaworkers’ compensation program. Tenet hospitalsare under investigation by the Medicare programfor inflating their charges to generate allegedlyexcessive payments for high-cost inpatients.RAND was asked to provide an assessment of thepotential vulnerabilities that excessive chargeinflation poses for the California workers’compensation system. Wynn testified that thelargest risks are related to payments for extremelyhigh-cost inpatients and for outpatient services.

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DRAFTS

DRU-1014-ICJ—Trends in Punitive Damages:Preliminary Data from Cook County, Illinois, andSan Francisco, California. D. R. Hensler, E. Moller,1995.

The ICJ is currently updating its jury verdictdatabase, which includes information on civil juryoutcomes and punitive damage awards, for CookCounty, Illinois, and San Francisco, California, forthe period 1960 to 1994. This paper presents thepreliminary results of the analyses of trends inpunitive damage awards in these state trial courtjurisdictions. Changes in the number of awardsreflect, in part, changes in the number of casestried to verdict in each of these jurisdictions;these changes, in turn, reflect changes in courtjurisdiction, statutory and case law, and, probably,litigation strategies. Changes in the percentages ofcases in which punitive damages were awardedare, therefore, a better indicator of the likelihoodof punitive damages being awarded over time.The results suggest that the likelihood of suchawards has varied over time, rising significantlyduring the 1980s, and falling back more recently.They also show that punitive damages areawarded more frequently in some cases thanothers: From 1960 to 1994, punitive damages weremost likely to be awarded in intentional tort casesand business and contract disputes.

DRU-1059-ICJ—Trends in Punitive Damages:Preliminary Data from California. E. Moller,1995.

This paper presents the preliminary results of theICJ’s analyses of trends in punitive damageawards in California. The data are drawn fromJury Verdicts Weekly, which reports verdicts inCalifornia Superior Court jurisdictions. Thefindings indicate that the actual number ofpunitive damage awards in each jurisdiction wasquite modest, punitive damages are awardedmore frequently in some types of cases than others(punitive damages were most likely to be awardedin intentional tort cases and business and contractdisputes), and the number of punitive damageawards varies over time. Median and meanawards rose in San Francisco County from 1985 to

1989, but the maximum award and total amountof punitive damages awarded decreased. Finally,the proportion of total dollars awarded toplaintiffs that is attributable to punitive damagesincreased between the 1980 to 1984 and 1985 to1989 periods.

DRU-1264-ICJ—Liability System Incentives toConsume Excess Medical Care. S. J. Carroll,A. F. Abrahamse, M. S. Marquis, M. E. Vaiana,1995.

It is generally accepted that some, and perhapsmany, claimants obtain medical care fornonexistent injuries in order to gain access tocompensation for pain and suffering. It is alsogenerally accepted that some, and perhaps many,claimants with valid injury claims consume morehealth care than appropriate either because theywant to increase the amount of compensation theyreceive for pain and suffering or because a healthprofessional recommended that treatment.However, there has been no empirical evidenceabout how excessive claims, in the aggregate,affect the costs of the health care system, or towhat extent such claims impose other costs onsociety, such as claims-handling, legal and othertransaction costs, and increased prices andinsurance costs. This study provides a first-orderestimate of these effects. Drawing on several ICJanalyses of claiming behavior, the authorscharacterize the nature of the liability incentives toexaggerate medical claims and develop estimatesof the total costs of the excess medical careconsumed. They examine the rate of excessmedical claiming for automobile personal injuriesand estimate the amount of medical care resourcesconsumed by all other injury liability claims. Theythen apply to that estimate the excess claimingrate derived from the analysis of auto injuries toget an estimate of the cost of excess medical costsincurred for non-auto injuries in response toliability system incentives. These calculations arebased on the critical assumption that the rate ofexcess claiming for non-auto injuries is about thesame as for auto personal injuries. The authorssuggest three areas to examine for appropriatepolicy responses that may reduce this excessconsumption of health care resources: (1) Examine

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our auto insurance systems; (2) schedule generaldamages for some or all cases; and (3) change therules governing admissibility of medical costinformation in courts.

DRU-1266-1-ICJ—Making ZEV Policy DespiteUncertainty: An Annotated Briefing for theCalifornia Air Resources Board. L. S. Dixon,S. Garber, M. E. Vaiana, 1995.

The federal Clean Air Act Amendments of 1990established national ambient air quality standards,and each state not in attainment must develop aplan for meeting them. California’s strategyincludes strict emissions standards for mobile andstationary sources and for area sources such assolvents, paints, and consumer products. The costand efficacy of California’s plan have generatedsubstantial debate. Studies by various interestgroups and by government agencies haveproduced wide ranging estimates of the cost andemissions reductions associated with variouselements of the plan, and little commonly acceptedempirical information exists on which to basepolicy decisions. The ICJ undertook an analysis ofthe existing estimates of the cost and effectivenessof California’s plan. This preliminary briefingfocuses on one element of the plan—the zeroemission vehicle mandate.

DRU-1609-ICJ—The Effects of a ChoiceAutomobile Insurance Plan Under Considerationby the Joint Economic Committee of the UnitedStates Congress. A. F. Abrahamse, S. J. Carroll.1997.

At the request of the Joint Economic Committee ofthe United States Congress, the RAND Institutefor Civil Justice staff drew on previouslypublished Institute studies of choice automobilepersonal injury insurance systems, as well as aspecial analysis, to estimate the effects of a specificchoice automobile personal injury insurance plan.This draft report describes the analysis submittedto the Joint Economic Committee.

DRU-2832-ICJ—Deterring Fraud: The Role ofGeneral Damage Awards in Automobile InsuranceSettlements. D. S. Loughran. 2002.

Awards for pain and suffering and other non-economic losses amount to 65 percent of alldamages awarded under auto insurance bodilyinjury settlements. This draft report presents thehypothesis that insurers use general damageawards to reduce claimants’ incentives to submitexaggerated claims for specific damages forinjuries and lost wages. Consistent with thishypothesis, this study finds evidence, using dataon more than 20,000 closed bodily injury claims,that special damage claims that exceed theirexpected value receive proportionally lowergeneral damage awards than claims that do not.Among the implications of this study is that theaggregate cost of auto insurance fraud may be lessthan what is typically estimated because insurersappear to compensate for suspected fraud bylowering general damage awards.

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REPRINTS

RP-103—Court-Ordered Arbitration: AnAlternative View. D. R. Hensler. 1992. (Reprintedfrom The University of Chicago Legal Forum,Vol. 1990.)

Policy and scholarly debates over the wisdom ofmandating arbitration for civil lawsuits usuallyfocus on differences between arbitration and trial,and on values that litigants may forfeit if the courtrequires them to arbitrate their disputes, ratherthan take them to trial. Critics often view therequirement that litigants arbitrate as a denial ofadjudicatory process or, at least, as an obstacle toobtaining adjudicated resolutions of disputes. Thisarticle argues that in many metropolitan courts inthe U.S. today, arbitration is the only adjudicatorymechanism actually available to most litigantswith ordinary civil cases. Because litigants mustwait from two to five years for cases to reach trial,and because many lawyers are unwilling to investtheir time in trying smaller-value cases, litigants’real choice in courts that offer arbitration isbetween arbitration and settlement. Therefore,more attention should be given to the differencesbetween these two dispute resolution mecha-nisms. This article describes court-ordered arbitra-tion and distinguishes it from other dispute reso-lution procedures; summarizes the developmentof court arbitration programs and places thisdevelopment within the context of the alternativedispute resolution (ADR) movement; and reviewspolicy and scholarly concerns that have beenexpressed about the expanding role of court-man-dated arbitration. Finally, it draws on evaluationsof arbitration programs and procedural justiceresearch, and details empirical findings on: (1) theconsequences of adopting court orderedarbitration programs; (2) litigants’ standards ofdue process; and (3) litigants’ assessments of thedegree to which various court processes, includingarbitration, satisfy these standards. The authorurges that rather than opposing arbitration as amatter of principle, legal scholars consider how tomodify arbitration rules to strengthen due process.At the same time, she cautions those who areinterested in improving the arbitration process toresist what might otherwise be their natural

impulse: to make arbitration hearings increasinglyresemble trials.

RP-107—Assessing Claims Resolution Facilities:What We Need to Know. D. R. Hensler. 1992.(Reprinted from Law and Contemporary Problems,Vol. 53, No. 4, Autumn 1990.)

Most contemporary procedures for mass litigationwere developed in a slow, reasoned fashion andwere the result of professional study, scholarlydiscourse, judicial decisionmaking, and appellatereview. Claims resolution facilities, in contrast,are creatures of necessity. They emerged froma specific litigation, and are the product ofcompromising the competing interests of parties,attorneys, judges, and other court actors. Thisarticle proposes an agenda for research on claimsresolution facilities, the results of which couldassist in improving the current set of facilities andfashioning better alternatives for the future. Theobjectives of the proposed research are to (1)describe the outcomes of different facilities; (2)examine the differences in outcomes among andbetween claims facilities and other compensationsystems (including the tort liability system); and(3) develop a better understanding of the relation-ship between key design and implementationdecisions and these outcomes. This articlediscusses the outcomes of interest and therelationships between design and outcomes thatmerit further investigation, considers thefeasibility of collecting systematic empirical dataon the claims resolution facilities, and discussesthe public interest in research on claims facilities.

RP-108—Giving Away Money: ComparativeComments on Claims Resolution Facilities. M. A.Peterson. 1992. (Reprinted from Law andContemporary Problems, Vol. 53, No. 4, Autumn1990.)

Claims resolution facilities are created to provideefficient means to distribute money to claimants,primarily by reducing participation in thelitigation system. Existing claims facilities differ intheir emphasis on these and other objectives, andhave had varying success. It is still too early toassess these facilities definitively; some have notbecome fully operational, while others have

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already been reorganized. Nevertheless, theirexperiences suggest that certain features maymake claims facilities more or less successful inachieving their basic objectives. This articleconsiders how the structures and operations ofthese facilities related to their relative success.Claims facilities seem productive in the mostcontentious of situations. They are also successfulin the least contentious situations. The success ofclaims facilities is more clouded where theirobjectives are most ambitious, that is, where thefacility has been substituted for litigation of greatstakes to claimants. Claims facilities present acomplex array of legal issues, litigation strategies,and administrative difficulties that affect manyparties with varying interests. The novel problemsfacing these facilities will be resolved mostsuccessfully if parties have the flexibility to let thefacilities evolve and are willing to cooperate toachieve sensible solutions.

RP-109—Science in the Court: Is There a Role forAlternative Dispute Resolution? D. R. Hensler.1992. (Reprinted from Law and ContemporaryProblems, Vol. 54, No. 3, Summer 1991.)

As a result of changes in legal doctrine and litiga-tion practices there has been a recent explosion oftort cases (for example, medical liability andproduct liability cases) for which scientificquestions are central. Although many reasonsexist for the problematic character of thislitigation, some observers have suggested that theproblems associated with these types of casescould be mitigated by modifying court proceduresfor dealing with the scientific questions on whichmost cases turn. Coincidentally, while thesesubstantive developments in tort liability havebeen taking place, a significant procedural changehas occurred in the civil litigation process.Increasingly, alternative dispute resolution (ADR)mechanisms (for example, arbitration andmediation) are being substituted for traditionalcourt decisionmaking processes, such as the jurytrial. Many proponents of ADR are primarilyinterested in reducing the transaction costs of civilcase processing. But some have asked whetherADR might remedy perceived problems in courtprocedures for dealing with scientific questions in

court cases. This article examines this question. Itreviews the concerns that have been raised aboutcourt resolution of scientific issues and thecriticisms that have been voiced regarding medicalmalpractice, product liability, and toxic tortlitigation. It reviews the objectives of the ADRmovement, describes the major forms of ADR inuse today, discusses their use in medical malprac-tice, products liability, and mass toxic tort cases,and summarizes the empirical evidence on theconsequences of utilizing each of these forms forkey aspects of dispute resolution. Finally, it con-siders whether and how ADR can contribute toimproving court procedures for dealing withscientific questions.

RP-110—From “Cases” to “Litigation.” J. Resnik.1992. (Reprinted from Law and ContemporaryProblems, Vol. 54, No. 3, Summer 1991.)

This article documents changes in attitude andpractice about the propriety of resolving cases ingroups. It makes five key points: (1) Participantsand commentators have changed their attitudessubstantially over the last three decades about thepropriety of cases proceeding in the aggregate; (2)the change in attitude dovetails with changingpractices that enable much more aggregative pro-cessing in federal courts than there was a fewdecades ago; (3) aggregation has been imposed asa means of enabling claims that would otherwisenot be pursued or as a means of expediting casesalready filed; however, in practice, these twofunctions are not so distinct; (4) the increase inaggregative processing has changed the way casesabout individuals are viewed and has influencedcontemporary debates about the allocation ofauthority between state and federal courts andArticle III and Article I judges; and (5) aggregationposes a challenge to the civil justice system, whichhas been largely animated by individual claims ofwrongdoing, to which government-empoweredjudges and juries respond in a relatively visibleand litigant-specific way.

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RP-113—Taking Aim at the American LegalSystem: The Council on Competitiveness's Agendafor Legal Reform. D. R. Hensler. 1992. (Reprintedfrom Judicature, Vol. 75, No. 5, February–March1992.)

This article considers the Council onCompetitiveness's agenda for reform of the U.S.civil justice system. Citing the lack of evidence tosupport many of its assertions, the author suggeststhat the council is on shaky ground in blamingU.S. economic problems on the legal system. Infavoring corporate defendants over individualplaintiffs, the council appears to have a politicalagenda.

RP-114—Fashioning a National Resolution ofAsbestos Personal Injury Litigation: A Reply toProfessor Brickman. D. R. Hensler. 1992.(Reprinted from Cardozo Law Review, Vol. 13,No. 6, April 1992.)

In this article, the author responds to ProfessorLester Brickman’s analysis of the asbestoslitigation problem, as well as to his proposal for anational administrative solution to the problem.While the author shares Professor Brickman’sview that the process for resolving asbestos-related personal injury claims has gone awry, andthat the time has come for a national resolutionpolicy, the author disagrees with the underlyingthrust of his analysis of asbestos litigation. Currentoptions for a national policy include a federalstatute-based administrative compensationprogram, and a judicially mediated settlement ofpending federal and state court claims, withprovision for payments to future claimantsthrough a national trust. Neither one of theseoptions is optimal. Each approach woulddisadvantage some of the current and futureparties to the litigation, and would divergesubstantially from our idealized vision of a civiljustice system that uses carefully craftedprocedures to match individual disputes. Thecurrent asbestos litigation process also divergessubstantially from that idealized vision. Theprocedures are more aggregative than they areindividualized and real outcomes are moregeneric than case-specific. The author believes it istime to confront the realities of asbestos litigation

and to assess proposals for a national resolution ofthe litigation against a standard that admits tothose realities, rather than a standard based on ouraspirations for individualized dispute resolution.This paper contributes to a rethinking of theasbestos litigation problem. It critiques ProfessorBrickman’s perspective and offers in its stead theauthor’s assessment of the roles of the parties tothe litigation. It describes the status and history ofthe litigation. It comments on the difficulties ofdesigning administrative compensation programs,and discusses specific aspects of ProfessorBrickman’s proposal.

RP-115—Framing the Compensation Inquiry.E. S. Rolph. 1992. (Reprinted from the Cardozo LawReview, Vol. 13, No. 6, April 1992.)

The tort system has become the object of amounting chorus of complaints. Some critics arguethe system is inadequate to the task of resolvingparticular types of cases—that in some situations itis too expensive, compensation is not fairlydistributed, it inhibits the production of valuedgoods and services, and justice is poorly served byits allocation of costs and benefits. Others see theseproblems as so pervasive that they espouse moresweeping reforms. Although the outcome of thedebate is not yet apparent, this appears to be acrucial time in the evolution of liabilitycompensation. It must, however, be rememberedthat liability compensation is but one thread in thefabric of compensation policy. The criticisms of thetort system and the reform proposals they havespawned are best examined and evaluated in thecontext of society’s overall concern forcompensating the injured and spreading risks.When seen in this broader framework, it ispossible to develop a more coherentunderstanding of the purposes, options,limitations, and interrelationships of compensa-tion programs in general, and of the tort systemand alternatives to it, in particular. This articleoffers a way to organize our thinking from alarger perspective by developing a conceptualframework for all publicly mandated compensa-tion systems or programs that can account forstructure, coherence, and the wide variations inacceptable outcomes that we observe in these

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arrangements. The article treats several generalissues that relate to the design of all compensationprograms. It characterizes the circumstancesunder which this society chooses to compensatethose who are injured or who otherwise sufferloss, and describes the design requirements anddesign objectives shared by all compensationsystems and how adjustments in design alterprogram outcomes. Next, the article identifies thetrade-offs between valued objectives that designchoices inevitably impose on those crafting thesesystems and develops the three paradigms thatprovide essential rationales for making thedifficult trade-offs. Finally, it characterizes anddiscusses the current instability in a number ofcompensation programs, attributing much of thatinstability to certain unresolved tensions that flowfrom the trade-off imperative.

RP-116—Mass Justice: The Limited and UnlimitedPower of Courts. M. A. Peterson, M. Selvin. 1988.(Reprinted from Law and Contemporary Problems,Vol. 54, No. 3, Summer 1991.)

The proliferation of mass litigation in which manyplaintiffs sue a common defendant or defendantsfor injuries from the same accident, or fromexposure to the same product or substance,reflects the increasingly collective nature of life inthe second half of the twentieth century. This arti-cle examines the impact of aggregative procedureson mass tort litigation. It draws on a series of casestudies of 17 mass tort litigations that vary acrossimportant dimensions such as: (1) the type offormal and informal aggregative procedure used;(2) the type of product, exposure or incident thatgenerated the litigation; (3) the types of injuriesthat resulted; and (4) the geographical scope of thelitigation and aggregative procedure. The authorsfocus on the role of courts in mass tort litigation.They first describe courts’ interests in such casesand then consider the power that courts have toaggregate claims, describing limits on that powerand the flexibility that courts have to get aroundlimits. Finally, they examine how courts’ interestsin resolving mass tort litigation interfere withjudicial promulgation and consistent applicationof legal rules. The characteristics of mass litigationhave often forced courts far from the ideal of

carefully and fairly considering the merits of eachcase, balancing the interests of parties, andarticulating and applying rules for society. Thetraditional legal process cannot determine theindividual merits of tens or hundreds ofthousands of claims against scores of defendants.Courts have no special expertise in balancing theinterests of present and future claimants, atradeoff that is present in every mass tortinvolving latent injuries. Finally, when faced withmass torts, courts are not simply disinterestedadministrators of justice. Rather, the extraordinaryburdens of mass litigation make them deeplyinterested participants. Even though judicialconcerns are both worthy and reasonable, wemust still be concerned about how courts balancetheir own interests against the interests of othersas they wield their enormous power to shape masstort cases. The courts’ interests might compromisethe essential judicial duties to articulate sensiblelegal rules and to apply those rules in a consistentmanner.

RP-117—Alternative Dispute Resolution in Trialand Appellate Courts. R. J. MacCoun, E. A. Lind,T. R. Tyler. 1992. (Reprinted from D.K. Kagehiroand W.S. Laufer, eds., Handbook of Psychology andLaw, 1992.)

This study reviews the available research on sevenmajor court-administered alternative disputeresolution (ADR) procedures that appear to beparticularly popular and representative of thebroader range of alternatives: fee-shifting rules,small-claims mediation, victim-offender media-tion, judicially mediated plea bargaining, judicialsettlement conferences, court-annexed arbitration,and summary jury trials. The authors discusspotential consequences of ADR in the courts,including reductions in costs and delays, litigantsatisfaction and procedural fairness, a sense oflegitimacy and acceptance of ADR outcomes andpreservation and enhancement of existing rela-tionships. A growing body of research and theorycan guide the design of future ADR procedures.The next round of innovation should takeadvantage of what is now known to optimize allthe criteria that ADR programs seek to meet. Basicsocial-psychological laboratory experiments on

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dispute processing can also play an important rolein informing the conduct of applied field researchon ADR programs.

RP-134—Unintended Consequences of CourtArbitration: A Cautionary Tale from New Jersey.R. J. MacCoun. 1992. (Reprinted from The JusticeSystem Journal, Vol. 14, No. 2, 1991.)

Arbitration programs are expected to reducedelays and costs by providing a more efficientsubstitute for trial. But because most disputes arealready resolved without adjudication, anarbitration program is likely to divert more casesfrom settlement than from trial. The net effect canbe an increase in delay and congestion in thecourts. This pattern is illustrated by a recent studyof court-annexed automobile arbitration in NewJersey. Following the introduction of arbitration,there was a significant reduction in the percentageof cases settled without third-party intervention,but no reliable decrease in the trial rate, and asignificant increase in filing-to-termination timefor auto cases assigned to the program. Arbitrationprograms appear to meet a demand for fair,adjudicative third-party hearings, but in doing so,they don’t always improve court efficiency.

RP-226—Reading the Tort Litigation Tea Leaves:What’s Going on in the Civil Liability System.D. R. Hensler. 1994. (Reprinted from The JusticeSystem Journal, Vol. 16, No. 2, 1993.)

The recent presidential campaign controversyabout the state of the civil justice system providesan incentive for revisiting the question of how toproperly characterize the tort litigation system.How many tort cases are there? What is theaggregate rate of growth in tort filings? How dif-ferent or alike are filing patterns, trial outcomes,and costs for different types of torts? A review ofthe available data suggests that the liability systemcomprises multiple “worlds” of litigation, butraise questions about what is actually going on ineach of these worlds. Current data are inadequatefor answering these questions. Without a programof sustained research on litigation behavior andoutcomes, we will be forced to rely on “reading

the tea leaves” to assess trends in the civil justicesystem.

RP-229—No-Fault Approaches to CompensatingAuto Accident Victims. S. J. Carroll, J. S. Kakalik.1993. (Reprinted from The Journal of Risk andInsurance, Vol. 60, No. 2, 1993.)

This study estimates the effects of a broad rangeof alternative no-fault auto insurance plans ascompared with the traditional tort system. Asimulation model relating accident victims’injuries and losses to their expected auto insurancecompensation under a specified no-fault plan isapplied to a representative sample of autoaccident victims in the tort states. Their estimatedcompensation under each of several no-faultalternatives is then compared to their actualcompensation. The results indicated that no-faultinsurance can yield substantial savings over thetraditional system, or may increase costssubstantially, depending on the no-fault plan’sprovisions. Regardless of plan provisions, all no-fault plans reduce transaction costs, matchcompensation more closely with economic loss,reduce the amounts paid in compensation fornoneconomic loss to less seriously injured people,and speed up compensation.

RP-238—Inside the Black Box: What EmpiricalResearch Tells Us About Decisionmaking by CivilJuries. R. J. MacCoun. 1994.

This article discusses the potential contribution tothe policymaking process of systematic empiricalresearch on the behavior of civil juries. It providesa brief primer on methods of jury research; sum-marizes some of the major patterns in liability,compensatory, and punitive jury judgments; andattempts to explain how civil juries reach suchjudgments, drawing heavily on research on mockjuries and describing the effects of extralegal vari-ables on jury judgment.

RP-254—Consumer Choice in the Auto InsuranceMarket. J. O’Connell, S. J. Carroll, M. Horowitz, A.F. Abrahamse. 1994. (Reprinted from MarylandLaw Review. Vol. 52, No. 4., 1993.)

This article summarizes an analysis of how a planthat offers a choice between tort and absolute no-

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fault personal injury insurance would affect thecosts of auto insurance in states that now have thetraditional tort system. The authors estimate thatthe cost of compensating people on behalf ofdrivers who elect no-fault will be about 60 to 65percent less than what they would have been ifthose drivers had been insured under thetraditional tort system. These savings include boththe compensation paid to accident victims from allforms of auto insurance and all transaction costsincurred in making such payments. Assuming thatthe savings are passed in full to consumers, theseinsurer savings translate into lower premiums formotorists. Those who had only the mandatorycoverage under tort save the most—about half oftheir former premium under tort. Those who hadfuller coverage—for example, includingcollision/comprehensive—save about 30 percent.Premiums are unchanged for motorists whochoose to remain in the traditional tort system.Nationwide, motorists would save anywhere from$5 to $15 billion, depending on the percentage ofindividuals who switch from tort to no-fault.

RP-282—How to Improve Civil Justice Policy. M.Galanter, B. G. Garth, D. Hensler, F. K. Zemans.1994. (Reprinted from Judicature, Vol. 77, No. 4,January/February 1994.)

In this article, four leading civil justice scholarsargue that systematic collection of data on the civiljustice system is needed for reasoned and effectivepolicymaking.

RP-286—Blaming Others to a Fault? R. J.MacCoun. 1994. (Reprinted from Chance, Vol. 6,No. 4, Fall 1993.)

This article explores patterns of blaming identifiedin a nationally representative survey of traumatic-injury victims in the United States, conducted byRAND’s Institute for Civil Justice in 1991. Morethan half of all respondents who attributed at leastpartial causation for their injury to human behav-ior blamed themselves. But there were significantdifferences across accident types. Respondentsinjured in product-related or slip-and-fallaccidents blamed themselves, and those injured inwork-related incidents were equally likely toblame themselves or someone else. But in motor

vehicle accidents, a full 75 percent of victimsblamed someone else for their injuries. Onepossible explanation for the behavior of autoaccident victims is the psychological notion of“scripts”—we blame others for auto accidentsbecause newspaper ads and commercials, amongother influences, make blaming the other driverthe default behavior for this situation.

RP-311—Understanding Mass Personal InjuryLitigation: A Socio-Legal Analysis. D. R. Hensler,M. A. Peterson. 1994. (Reprinted from BrooklynLaw Review, Vol. 59, No. 3, Fall 1993.)

The 1980s was the era of mass personal injurylitigation. Hundreds of thousands of people suedscores of corporations for losses due to injuries ordiseases that they attributed to catastrophicevents, pharmaceutical products, medical devices,or toxic substances. The civil justice system has notresponded well to the challenge of handling masstorts, and many innovations have been proposedto improve processing of these cases. This articleexamines the broader context in which theseinnovations must function. The analysis suggeststhat current proposals for improving mass tortprocessing are not promising because they do notdeal directly with the uncertainties that flow fromthe factual and legal complexity of the cases, donot address the inherent conflicts of interestbetween attorneys and their clients in mass tortcases, ignore the fact that the asymmetric risksfacing plaintiffs’ attorneys and defendants drivethe litigation forward, and do not offer clearsolutions to issues associated with futureclaimants—those who may discover sometime inthe future that they were harmed by exposure tothe product.

RP-327—Does ADR Really Save Money? TheJury’s Still Out. D. R. Hensler. 1994.(Reprinted from The National Law Journal,April 11, 1994.)

This article reviews the evidence regarding claimsthat alternative dispute resolution can reduce thepublic costs of civil case disposition and lowerlitigants’ legal bills. The evidence is mixed. Inmost of the jurisdictions that adopted court-administered arbitration, too few cases are

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diverted from trial to balance the public costs ofimplementing an arbitration program. Moreover,court-administered arbitration programs have hadmixed success in reducing litigants’ costs for legalfees and expenses. The author suggests twolessons with application beyond the court-administered arbitration context: (1) inserting anynew procedure in the litigation process is likely toproduce unanticipated outcomes, and (2) litigants’and attorneys’ disputing behavior are influencedby non-economic as well as economic factors.Therefore, in the long run, whether public orprivate ADR programs achieve cost savings willprobably depend in large measure on how muchthey change patterns of disputing and lawyering.

RP-361—Preliminary Observations onImplementation of the Pilot Program of the CivilJustice Reform Act of 1990. T. Dunworth, J. S.Kakalik. 1995. (Reprinted from Stanford LawReview, Vol. 46, No. 6, July 1994.)

At the request of the Judicial Conference ofthe United States, RAND’s Institute for CivilJustice is evaluating the pilot program of theCivil Justice Reform Act of 1990. This articlereviews the design of the evaluation and presentsRAND’s preliminary observations about theimplementation of the pilot program. RAND’sprimary interim conclusions are that case-management procedures vary greatly among thevarious district courts, and that one result of thepilot program has been to increase this variation.Some districts have moved aggressively toimplement the policies of the pilot program, whileothers remain more cautious. However, theauthors note that even in those districts whoseexplicit policies have changed the least under thepilot program, the implementation process hasheightened the sensitivity of lawyers, judges, andclerks to the problems of litigation costs and delay.

RP-363—Why We Don’t Know More About theCivil Justice System—and What We Could DoAbout It. D. R. Hensler. (Reprinted from USC LawReview , Fall 1994.)

This article identifies three reasons why we knowless about the civil justice system than about manypublic policy issues: First, most of the costs of the

civil justice system are borne by private parties;second, no federal government agency has a clearmandate to conduct or support civil justice policyresearch and analysis; and third, there is nostatistical infrastructure to support ongoinginvestigation of the civil justice system. The authorsuggests that it is possible to do a better job ofmeasuring how the civil justice system operatesand the consequences of changes in substantiveand procedural rules, and outlines factors thatmust be considered in designing a civil justiceindicators series. She urges that we begin to definethe crucial information needed to monitor theprocesses and outcomes of the civil justice system.

RP-364—Whose Judgment? Vacating Judgments,Preferences for Settlement, and the Role ofAdjudication at the Close of the TwentiethCentury. J. Resnik, 1995. (Reprinted from UCLALaw Review, Vol. 41, No. 6, August 1994.)

A number of issues surround the question ofwhether a court should vacate either its owndecision or the decision of a lower court at parties’request so that, with such “vacatur on consent,”settlement will occur. These issues include thevalue that should be accorded adjudication; thelimits, if any, that should be placed on courts’encouragement and facilitation of settlement; whoowns lawsuits, the risks they entail, and thedecisions generated in their wake; the meaning ofthe words “public” and “private” in the context ofcourt decisions; and the proper balance betweenlitigants’ autonomy and third-party interests inlitigation. This article examines three recent casesin which the judges grapple with the problem ofvacatur, considers ways the case law on vacaturilluminates contemporary values about the utilityand desirability of adjudication, and describes andappraises the tensions among competing judicialtrends. Finally, the author evaluates the currentcelebration of alternative dispute resolution, andparticularly of settlement, and its impact on theunderstanding of the judicial role.

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RP-426—Trends in Patent Litigation: TheApparent Influence of Strengthened PatentsAttributable to the Court of Appeals for theFederal Circuit. J. F. Merz, N. M. Pace, 1995.(Reprinted from Journal of the Patent and TrademarkOffice Society, Vol. 76, No. 8, August 1994.)

This study explores the ramifications of theinfluence of the Court of Appeals for the FederalCircuit (CAFC) on the doctrinal stability andcertainty of the patent law, and provides evidencethat patentees (and their intellectual propertycounsel) have read the signals and responded byusing the courts to enforce the patent rights.Whether the CAFC’s bolstering the value ofpatents has in turn led to greater patenting activityremains largely unanswered, although themotivations are clear. Patenting is an expensiveactivity for inventors and their assignees, and,unless the courts are going to recognize andenforce patent rights, maintaining technologicaladvances as trade secrets (when possible) may bea better alternative.

RP-439—Many Doors? Closing Doors? AlternativeDispute Resolution and Adjudication. J. Resnik,1995. (Reprinted from The Ohio State Journal onDispute Resolution, Vol. 10, No. 2, 1995.)

This paper maps the changing attitudes towardalternative dispute resolution (ADR) and theclaims made on behalf of ADR, as well aschanging attitudes toward adjudication and itsattributes. The author (1) presents historicalbackground on the call for alternative forms ofdispute resolution; (2) outlines the various formsof ADR and groups them into modes defined bythe nature of the work done by the third partybrought in to handle a dispute; (3) reviews someof the ways in which ADR proposals have becomelaw and been institutionalized; and (4) considersthe relationship between claims made for ADRand views of adjudication. Finally, she uses thisbackground to define some issues that may affectADR and adjudication in the future: We canobserve the melding of ADR into adjudication,and then the narrowing of ADR and its refocusingas a tool to produce contractual agreementsamong disputants—in short, the focus is shiftingfrom adjudication to resolution.

RP-442—The Costs of Consumer Choice for AutoInsurance in States Without No-Fault Insurance. J.O’Connell, S. J. Carroll, M. Horowitz, A.Abrahamse, D. Kaiser. 1995. (Reprinted fromMaryland Law Review, Vol. 54, No. 2, 1995.)

Traditional tort liability for personal injury fromauto accidents has long been criticized on thegrounds that its costs are too high and that anycompensation it provides is inefficient, unfair, anddilatory. This article examines a reform systemthat replaces current no-fault proposals, focusingon the cost savings that would result. The newreform would give motorists the option of forgoingclaims for noneconomic loss without forcing themto do so. Thus, motorists would be given theoption of purchasing PIP (personal injuryprotection) coverage at the financial responsibilitylevel required by state law for personal injuryliability. The authors estimate the effect of the planon the costs of personal, private passenger autoinsurance in every state currently without a PIPplan limiting recovery for noneconomic losses.They estimate the percentage reductions inpremiums for motorists choosing the newcoverage and the anticipated dollar savings aswell. They conclude that the merits of allowingmotorists to opt out of payment for pain andsuffering and other noneconomic loss, in returnfor lower costs and receipt of automatic paymentfor economic loss, are worthy of consideration inevery state.

RP-446—A Glass Half Full, a Glass Half Empty:The Use of Alternative Dispute Resolution in MassPersonal Injury Litigation. D. R. Hensler, 1995.(Reprinted from Texas Law Review, Vol. 73, No. 7,June 1995.)

To determine whether the use of alternativedispute resolution (ADR) might help the civiljustice system deal with the increasing amount ofmass personal injury litigation, the author brieflysurveys the many forms of ADR (conciliation,mediation, arbitration, and other nonadjudicativeor quasi-adjudicative mechanisms to resolvecases). For purposes of this discussion, she definesADR as comprising procedures for resolvingdisputes that, compared with the traditionallitigation process of adversarial negotiation and

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trial, enhance parties’ (the real parties, not theirlegal representatives) control over litigationoutcomes or processes. The author then discussesvarious problems that courts face as they deal withmass personal injury litigation, highlighting theissues of scale, uncertainty, asymmetrical risksbetween plaintiffs’ attorneys and defendants,estimating the number and characteristics offuture claimants, conflicts of interest between andamong attorneys and their clients, and equitabledistribution of compensation. Finally, sheconsiders the extent to which the proceduralresponses to mass personal injury litigation can becharacterized as ADR and how well they havedealt with the special problems of mass tortlitigation. She suggests that, to determine howwell dispute resolution procedures—ADR or anyothers—serve mass tort claimants, it will benecessary to bring plaintiffs into the dialogue onmass personal injury litigation.

RP-518—The Comparative Costs of AllowingConsumer Choice for Auto Insurance in All FiftyStates. J. O’Connell, S. J. Carroll, M. Horowitz,A. F. Abrahamse, and P. Jamieson. 1996.(Reprinted from Maryland Law Review, Vol. 55,No. 1, 1996.)

This article presents estimates of the effects of a“choice” auto insurance plan on the costs ofprivate passenger auto insurance in each of the 50states. The choice plan would allow drivers theoption of switching from their state’s currentinsurance system to a no-fault system in whichthey waive their rights to tort claims for non-economic loss in return for assured compensationfor their economic loss and lower premiums. Foreach state, the authors first estimate what autoinsurers would have to charge the average insuredmotorist in order to recover the costs incurred incompensating accident victims under the currentauto insurance system. They then developcorresponding estimates for motorists who elect toretain the status quo and for motorists who choosethe optional no-fault plan. They next comparethese estimates to determine how the adoption ofthe plan allowing choice would affect the costs ofauto insurance to both motorists who elect theirstate’s current system and those who elect the no-

fault option. The authors estimate that the costs ofinsuring drivers who elected the no-fault optionwould be reduced by roughly 20 to 40 percent inalmost every state, which translates intoreductions in premiums of about 10 to 20 percentfor the average driver who purchases the averagecombination of personal injury and propertydamage coverages. Drivers who purchase onlythose coverages mandated in each state wouldrealize greater savings under the choice plan.

RP-584—Individuals Within the Aggregate:Relationships, Representation, and Fees. J. Resnik,D. E. Curtis, D. R. Hensler. 1996. (Reprinted fromNew York University Law Review, Vol. 71, Nos. 1–2,April–May 1996.)

Over the past decade, aggregate litigation hasbecome more commonplace. Through variousstatutory, rule-based, and informal means,judges and lawyers consolidate large groups ofindividual litigants and claims. The paradigm of aclass action, however, continues to dominate theliterature, and with it, the assumption that a singleset of lead lawyers represents all of the plaintiffs inthe assembled group. This article addressesthe problems raised when, in contrast to thatparadigm, aggregation brings together massattorneys, who perform tasks in addition to thosedone by a court-appointed plaintiffs’ steeringcommittee. The authors’ central questions areabout the roles of the many lawyers within theaggregate and the potential for policymakers touse procedural tools and the law of attorneys’ feesto structure incentives to enhance the experienceof individual litigants within the aggregate.

RP-606—Estimating Liability Risks with theMedia As Your Guide: A Content Analysis ofMedia Coverage of Tort Litigation. D. S. Bailis,R. J. MacCoun. 1996. (Reprinted from Law andHuman Behavior, Vol. 20, No. 4, 1996.)

A content analysis of 249 articles from Time,Newsweek, Fortune, Forbes, and Business Weekduring 1980 to 1990 were used to examine popularmedia coverage of tort litigation. Compared withobjective data on tort cases, the magazine articlesconsiderably overrepresented the relativefrequency of controversial forms of litigation

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(product liability and medical malpractice), theproportion of disputes resolved by trial (ratherthan settlement), the plaintiff victory rate attrial, and the median and mean jury awards.Psychological mechanisms by which biases inmedia coverage could affect the decisionmaking ofpotential litigants are discussed. The resultshighlight the need for more systematic monitoringand dissemination of reliable data on tortoutcomes.

RP-607—Differential Treatment of CorporateDefendants by Juries: An Examination of the“Deep-Pockets” Hypothesis. R. J. MacCoun. 1997.(Reprinted from Law & Society Review, Vol. 30, No.1, 1996.)

Evidence that juries treat corporate defendantsless favorably than individual defendants is oftencited in support of the widely held view that juriesare biased against wealthy "deep-pocket"defendants. Such evidence confounds defendantwealth and defendant identity. In two simulationexperiments involving citizens on jury duty, thesefactors were separated by manipulating whetherthe defendant was described as a poor individual,a wealthy individual, or a corporation; thedefendant's assets were described identically withthe latter two conditions. In Experiment 1, liabilitywas significantly more likely, and awards weresignificantly greater, for corporate defendantsthan for wealthy individual defendants, butverdicts against poor versus wealthy individualsdid not differ. In Experiment 2, awards werelarger against wealthy individuals who engagedin commercial rather than personal activities, andawards in the personal activity condition werelarger against corporations than they were againstwealthy individuals. There was little evidence thata defendant’s wealth has an effect on jurorjudgments. While juries do appear to treatcorporations differently, the explanation may havemore to do with citizens' views about the specialrisks and responsibilities of commercial activity.

RP-635—Just, Speedy, and Inexpensive? JudicialCase Management Under the Civil Justice ReformAct. J. S. Kakalik. 1997. (Reprinted from Judicature,Vol. 80, No. 4, January–February 1997.)

This article summarizes RAND’s evaluation of theCivil Justice Reform Act of 1990 (CJRA). The CJRArequired each federal district court to develop acase management plan to reduce costs and delay.The legislation also created a pilot program to testsix principles of case management, and requiredan independent evaluation to assess their effects.Study results appear in four volumes: MR-800-ICJ,the executive summary, describes the purpose ofthe CJRA, the basic design of the evaluation, thekey findings, and their policy implications; MR-801-ICJ traces the implementation of the CJRA inthe study districts; MR-802-ICJ presents the maindescriptive and statistical findings related to cost,time to disposition, and participants’ satisfactionand views of fairness; and MR-803-ICJ describesthe results of an evaluation of mediation andneutral evaluation designed to supplement thealternative dispute resolution assessmentcontained in the main CJRA evaluation.

RP-702—The Real World of Tort Litigation. D. R.Hensler. 1998. (Reprinted from A. Salat et al., eds.Everyday Practices and Trouble Cases, NorthwesternUniversity Press, 1998.)

This book chapter compares the idealized vision oftort litigation that lawyers and policymakers holdout with the realities of the tort liability system,focusing on the perspective of individual litigants.In principle, tort law provides compensation toinjured individuals that is commensurate with lossand sends deterrent signals to potentialwrongdoers by visiting the costs of injuries onthose best in the position to reduceit—manufacturers, service providers, individualsdrivers, and the like. In principle, also, civil legalprocedures enable individual plaintiffs anddefendants to participate fully in the disputeresolution process and ensure access to thecourts when parties cannot settle disputesthemselves. Drawing on surveys of litigants andautobiographical accounts of their experiences inordinary and mass tort litigation, Henslerdescribes a rather different process—one thatgenerally fails to compensate those with themost serious losses and that sends deterrentsignals to potential wrongdoers that are difficult, ifnot impossible, to interpret. As perceived by

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individual litigants, the dispute resolution processis controlled by lawyers who are distant from theirclients, and disputes are settled according to rulesof thumb that bear little relationship to thecompensation or deterrent objectives of the tortliability system. Courts are often closed to citizens;judges and lawyers are deaf to litigants’ desires toair their grievances, which the latter oftenarticulate in terms of justice and fairness norms.

RP-707—The Effects of a Choice Auto InsurancePlan on Insurance Costs and Compensation. S. J.Carroll, A. F. Abrahamse. 1998. (Reprinted fromCPCU Journal, Spring 1998.)

This article updates an earlier study estimatingthe effects of a choice automobile insurance planon the costs of compensating auto accident victimsif the no-fault option was absolute no-fault (ANF).The authors assumed that 50 percent of theconsumers who would have purchased autoinsurance under their state’s current system wouldswitch to ANF under the choice plan. The earlierstudy, requested by the Joint Economic Committeeof the U.S. Senate and using data from 1987,estimated how a variant of that plan would affectthe cost of private passenger auto insurance if allcurrently insured drivers elected the no-faultoption. The present report uses recently obtaineddata for a representative sample of people whowere compensated for auto accident injuries in1992. With these data, the authors have replicatedtheir analyses for 46 states. They find that thechoice plan could substantially reduce the costs ofcompensating people injured in auto accidents.

RP-714—Analyzing Discovery ManagementPolicies: RAND Sheds New Light on the CJRAEvaluation Data. J. Kakalik. 1998. (Reprinted fromJudges’ Journal, Spring 1998.)

The Civil Justice Reform Act of 1990 (CJRA)required each federal district court to develop acase management plan to reduce costs and delay.The legislation also created a pilot program to testsix principles of case management, and requiredan independent evaluation to assess their effects.This report reviews earlier RAND studiesevaluating the CJRA and its effects and offersresults from a follow-up study examining the

amount of time attorneys spent on discovery overa broad sample of federal cases disposed in 1992 to1993. The results show that, although attorneysspend increasing amounts of time in discoveryproportional to the length of disposition time acase requires, the percentage of time spent ondiscovery per case is relatively stable and does notconstitute a majority of lawyer time in virtuallyany case. Imposition of CJRA-based discoveryreforms tends to reduce disposition time, but thiseffect is often inseparable from the case-management style of the presiding judge.

RP-745—The Effect of Allowing Motorists to OptOut of Tort Law in the United States. J. O’Connell,S. Carroll, A. Abrahamse, M. Horowitz, A. Karan.1998. (Reprinted from La Cahiers du Droit, Vol. 471,1998.)

This article examines whether allowing motoriststo choose auto insurance policies that waive rightsto recovery for noneconomic losses actually savemoney for the insureds. The authors studiedcompensation claims paid and closed in severalstates during 1992. They calculated what the costswould have been had personal injury protection(PIP) insurance plans, which restrict noneconomicrecovery and are alternatives to typical fault andno-fault based coverages, been available as policyoptions. Comparing their findings with those fromtheir study in 1987, they report that the choiceplan could reduce insurer costs for paid claims inmost states, lowering the cost of premiums anaverage of 20 percent for the typical insured driverelecting PIP coverage. However, they note thatthis percentage has fallen drastically from thelevels they reported in 1987 because of a sizableincrease in economic loss due to accidents duringthe intervening years and a concurrent failure byinsured drivers to modify their policies to coverthat increase.

RP-746—Arbitration Agreements in Health Care:Myths and Reality. E. Rolph, E. Moller, J. Rolph.1998. (Reprinted from Law and ContemporaryProblems, Vol. 60, No. 1.)

There is considerable debate, but very littleempirical information, regarding the use ofmandatory binding arbitration agreements in

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health care. Using California as its reference, thisstudy determines the prevalence of arbitrationagreements between health plans and theirenrollees and providers and their patients. Theauthors examine how decisions regarding the useof such agreements are made by plans andproviders, and assess the prospects of their futureuse.

RP-747—Product Liability, Punitive Damages,Business Decisions, and Economic Outcomes.S. Garber. 1998. (Reprinted from Wisconsin LawReview, Vol. 1998, No. 1.)

Product price, safety, and innovation aredetermined primarily by business decisions. Inmany industries, product liability costs and riskscan significantly influence such decisions. Inaddition to direct liability costs (for example, costsof defending claims and lawsuits, negotiating andpaying settlements and awards), product liabilitylitigation can lead to indirect costs such asnegative publicity, reduced product sales, andcostly reactions by safety regulators. Potential forpunitive damages is a major reason that, unlikemost business risks, product liability risks areeffectively unlimited. This article reports empiricalfindings concerning how product liability, andthe threat of punitive damages, affect businessdecisions and economic outcomes in thepharmaceutical, medical device, and automobileindustries. The article also discusses social benefitsand costs of product liability, the sources ofpotential undesirable behavioral effects, and howthe policy debates about product liability andpunitive damages might be improved.

RP-755—Risk Premiums for EnvironmentalLiability: Does Superfund Increase the Cost ofCapital? S. Garber, J. K. Hammitt. 1999. (Reprintedfrom Journal of Environmental Economics andManagement, Vol. 36, No. 3, 1998.)

Superfund liability may impose financial risk oninvestors and thereby increase firms' costs ofcapital. Monthly stock returns are analyzed for 73chemical companies using several measures ofSuperfund exposure. Additional exposure appearsto increase costs of capital for larger firms, butperhaps not for smaller firms. From 1988 to 1992,

an average increase in the cost of capital ofbetween 0.25 to 0.40 percentage points per year isestimated for 23 larger firms. The social cost ofSuperfund-related financial risk in the chemicalindustry may be as high as $800 million annually,or enough to clean up about 20 sites.

RP-794—Product and Stock Market Responses toAutomotive Product Liability Verdicts. S. Garber,J. Adams. 1999. (Reprinted from M. Baily, P. Reiss,and C. Winston, eds., Brookings Papers on EconomicActivity: Microeconomics 1998.)

Claims about detrimental economic effects ofproduct liability are a cornerstone of efforts by tortreformers to rally support. It seems fair to say,however, that existing evidence about economiceffects of product liability is sketchy. In this paper,the authors attempt to develop information abouta narrow but important piece of a very complexpuzzle. In particular, they develop quantitativeevidence about a component of automobilemanufacturers’ incentives stemming from productliability by examining effects of trial verdicts oncompany stock prices and on new vehicle sales.

RP-808—Do We Need an Empirical ResearchAgenda on Judicial Independence? D. Hensler.1999. (Reprinted from Southern California LawReview, Vol. 72, Nos. 2 and 3.)

Judicial independence is under attack—and hasbeen since the birth of the republic. Whetherempirical research regarding the nature and healthof judicial independence is needed constitutes aquestion that requires consideration from severaldifferent angles. Agreement about what judicialindependence, or a lack thereof, actually means isa difficult and necessary first determination to bemade before any analysis could begin.Categorizing the nature of attacks uponindependence, examining the public’s attitude andknowledge regarding courts, and evaluating themethods by which judges attain appointment areall worthy approaches for research about judicialindependence.

RP-809—Newspaper Coverage of AutomotiveProduct Liability Verdicts. S. Garber andA. Bower. 1999. (Reprinted from Law & SocietyReview, Vol. 33, No. 1.)

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Media coverage of litigation may affect people’sperceptions and therefore the behavior of litigants,judges, juries, legislators and business decision-makers. Their behavior in turn influences variouslegal, social, political, and economic outcomes. Forproduct liability verdicts during 1983 to 1996involving automobile manufacturers, the authorsexamine the extent of coverage in several dozennewspapers. They find almost no articlesreporting on any of 259 verdicts for the defendant.Econometric analysis focuses on determinants ofthe amount of coverage of 92 verdicts forplaintiffs, 16 of which include punitive damages.Key determinants include the award amount, thenature of injuries, the vehicle's recall history, andespecially the existence of a punitive component ofdamages regardless of its size.

RP-810—The Frequency of Excess Claims forAutomobile Personal Injuries. A. Abrahamse,S. Carroll. 1999. (Reprinted from G. Dionne andC. Laberge-Nadeau, eds. Automobile Insurance:Road Safety, New Drivers, Risks, Insurance Fraud andRegulation, 1999.)

Over the past 15 years, automobile insurancepremiums, particularly for personal injurycoverage, have grown rapidly. Furthermore,these increases are nationwide. Stiff increasesin insurance premiums are burdensome foreveryone. High insurance premiums are anincentive for people to drive uninsured,exacerbating the uninsured motorist problem.Debates over auto insurance costs generallyfeature clashing perspectives, but nearly everyoneagrees that when insurance companies paycompensation for nonexistent injuries, the costsare reflected in higher insurance bills for everyone.But how much excess claiming is there? This studyanalyzes the patterns of personal injury claimssubmitted across the states to estimate the extentof “excess claiming,” claims for alleged injuriesthat are either nonexistent or unrelated to theaccident. The study confirms that the UnitedStates’ tort liability system provides incentives tosubmit excess claims for auto injuries, andprovides empirically based estimates of how muchexcess claiming exists.

RP-812—Direct Contracts, Data Sharing andEmployee Risk Selection: New Stakes for PatientPrivacy in Tomorrow’s Health Insurance Market.D. Studdert. 1999. (Reprinted from AmericanJournal of Law & Medicine Vol. 25.)

Direct contracts are arrangements for the provisionof health care services between a provider-sponsored organization and an entity not licensedto insure, typically a self-insured employer.Although delivery systems built around a healthplan intermediary have clearly emerged as thedominant model, several legal and marketdevelopments portend greater interest in the useof direct contracts. This article explores threatsposed to patient privacy by these direct contracts.Economic incentives to avoid sick individualsbecome concentrated at the physician group level.Employers, when involved in analysis of detailedutilization data, may face heightened incentivesand new opportunities to ensure that theirworkforce contains few employees with highmedical expenditures. Neither the existing legalprotections nor the privacy reforms underconsideration in Congress appear to offeradequate protection against these particularthreats. One potentially effective protection wouldreinsert a third party—a “health informationtrustee”—between purchaser and provider forpurposes of guarding sensitive data; however,such a requirement could chill interest in directcontracts.

RP-830—Goal Conflict in Juror Assessments ofCompensatory and Punitive Damages. M. C.Anderson, R. J. MacCoun. 1999. (Reprinted fromLaw and Human Behavior, Vol. 23, No. 3.)

Recent tort reform debates have been hindered bya lack of knowledge about how jurors assessdamages. Two studies investigated whether jurorsare able to appropriately compartmentalizecompensatory and punitive damages. In Study I,mock jurors read a trial summary and were askedto assess compensatory and punitive damages inone of three conditions: (a) compensatorydamages only; (b) punitive damages for theplaintiff; or (c) punitive damages for the statetreasury. Results suggest that jurors who did nothave the option to award punitive damages

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inflated compensatory damages via pain andsuffering awards. Jurors were marginally morelikely to award punitive damages when theplaintiff was the recipient. Mock jurors in Study 2read a similar case summary and were asked toassess compensatory and punitive damages. Twofactors were varied in Study 2: (a) egregiousnessof the defendant's conduct, and (b) the recipient ofany punitive damages (the plaintiff versus aconsortium of state funds). Jurors were morelikely to award punitive damages when thedefendant's conduct was more egregious andwhen the plaintiff was the recipient. The resultssuggest overlap between compensatory andpunitive damage judgments, contrary to the law’smandate.

RP-858—Lifetime Costs and Compensation forInjuries. M. S. Marquis, W. G. Manning. 1999.(Reprinted from Inquiry, Vol. 36, No. 3.)

Little is known about how well individuals arecompensated for injuries. Data from a 1989 surveyare analyzed to estimate both lifetime costs andcompensation. The results indicate that about55 percent of the cost is compensated by public orprivate programs. Compensation rates are lowerfor disabling injuries and injuries of a longduration. The results also suggest that compensa-tion system reforms that would place stricterlimits on maximum compensation might not be adistributionally fair solution. The reasons are thatcosts are highly skewed, and the share of costsrecovered by compensation programs is currentlylowest for injuries that are long term, disabling,and the most expensive.

RP-860—Expanded Managed Care Liability: WhatImpact on Employer Coverage? D. M. Studdert,W. M. Sage, C. R. Gresenz, D. R. Hensler. 2000.(Reprinted from Health Affairs, Vol. 18, No. 6,November/December 1999.)

Policymakers are considering legislative changesthat would increase managed care organizations'exposure to civil liability for withholding coverageor failing to deliver needed care. Using acombination of empirical information andtheoretical analysis, the authors assess the likelyresponses of health plans and Employee

Retirement Income Security Act (ERISA) plansponsors to an expansion of liability, and theyevaluate the policy impact of those moves. Theyconclude that the direct costs of liability areuncertain but that the prospect of litigation mayhave other important effects on coveragedecisionmaking, information exchange, riskcontracting, and the extent of employers'involvement in health coverage.

RP-861—Just, Speedy, and Inexpensive? AnEvaluation of Judicial Case Management Underthe Civil Justice Reform Act: A Summary. J. S.Kakalik, T. Dunworth, L. A. Hill, D. McCaffrey, M.Oshiro, N. M. Pace, M. E. Vaiana. 2000. (Reprintedfrom Dispute Resolution: System in Transition.)

The Civil Justice Reform Act of 1990 (CJRA)required each federal district court to develop acase management plan to reduce costs and delay.The legislation also created a pilot program to testsix principles of case management, and requiredan independent evaluation to assess their effects.This executive summary provides an overview ofthe purpose of the CJRA, the basic design of theevaluation, the key findings, and their policyimplications. Detailed results appear in three otherreports: MR-801-ICJ, which traces the stages in theimplementation of the CJRA in the study districts;MR-802-ICJ, which presents the main descriptiveand statistical evaluation of how the CJRA casemanagement principles implemented in the studydistricts affected cost, time to disposition, andparticipants’ satisfaction and views of fairness;and MR-803-ICJ, which describes the results of anevaluation of mediation and neutral evaluationdesigned to supplement the alternative disputeresolution assessment contained in the main CJRAevaluation.

RP-862—Legal Issues in the Delivery ofAlternative Medicine. D. M. Studdert. 2000.(Reprinted from Journal of the AmericanMedical Women's Association, Vol. 54, No. 4, Fall1999.)

The increasing integration of alternative therapiesin medical treatments has raised concerns aboutliability implications among the health careprofessionals who deliver such therapies. The

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analysis in this article focuses on the type andfrequency of claims brought against health carepractitioners who deliver alternative therapies andthe standard of care to which they are held whensued. When courts decide cases at the intersectionof conventional and alternative medicine, they areencouraged to judge conduct according tostandards enunciated by alternative medicinepractitioners who regularly deliver the treatmentat issue; physicians who have established similarpractices; and conventional practitioners. Patientsneed to be fully informed about the alternativeprocedures and possible outcomes, and thepractitioners should obtain express consent fromthe patient for the treatment, ideally in writing.

RP-863-ICJ—The Effects of a Choice AutoInsurance Plan on Insurance Costs andCompensation. S. J. Carroll, A. F. Abrahamse.2000. (Reprinted from Journal of InsuranceRegulation, Vol. 18, No. 1, Fall 1999.)

The authors estimate the effects of offering thedrivers in each state a choice between their state'scurrent insurance system and an absolute no-faultplan in which motorists neither recover nor areliable for noneconomic loss for any auto accidentinjury. If insurance premiums are proportional tocompensation costs, drivers who choose absoluteno-fault should save about 45 percent on theirpremiums for personal injury coverage. Thistranslates to approximately 21 percent savings ontheir total auto insurance bill. Drivers who chooseto stay in their state's current insurance plan willgenerally realize a small amount of savings.

RP-871-ICJ—A Research Agenda: What WeNeed to Know About Court-Connected ADR.D. Hensler. 2000. (Reprinted from DisputeResolution Magazine, Vol. 6, No. 1, Fall 1999.)

Although practitioners of alternative disputeresolution (ADR) have long emphasized thebenefits of substituting problem-solving processesfor adjudication, empirical studies indicate thatADR may not save litigation costs or time.Litigants may prefer ADR because they believe itsaves them money that they would have spent ifthey went to trial; they may prefer mediationbecause of its process of conciliatory problem-

solving or because they feel they it gives themtheir due as citizens. Lawyers may prefermediation either for lawyerly reasons, or becausethe task of informing the client of a less than fullysatisfactory outcome is shifted to a third person.Measuring and understanding litigants' andlawyers' preferences for different forms of disputeresolution will require diverse research techniquesand numerous studies. New research may indicatethat the spread of ADR has more to do with theeconomics of legal practice than the ideology oftransformation. Producing quantitative changes inlegal dispute resolution may require more, andnot less, money.

RP-885-ICJ—Negligent Care and MalpracticeClaiming Behavior in Utah and Colorado. D. M.Studdert, E. J. Thomas, H. R. Burstin, B. I. W. Zbar,J. Orav, T. A. Brennen. 2000. (Reprinted fromMedical Care, Vol. 38, No. 3.)

Previous studies relating incidents of negligentmedical care to malpractice lawsuits were basedon data collected during a volatile period inmalpractice legislation (1984) from two of the mostpopulous states (New York and California). To seeif those studies would be generalizable, theauthors performed a similar analysis that linkedmedical malpractice claims data from Utah andColorado in 1992 with clinical data from a reviewof almost 15,000 medical records. They found thatthe poor correlation between medical negligenceand malpractice claims that was present in NewYork is also present in Utah and Colorado.Paradoxically, the incidence of negligent adverseevents exceeds the incidence of malpractice, butwhen a physician is sued there exists a highprobability that it will be for renderingnonnegligent care. The elderly and the poor areespecially likely to be among those who suffernegligence and do not sue, perhaps because theirsocioeconomic status limits opportunities tosecure legal representation.

RP-886-ICJ—The Jury Is Still In: Florida’s Birth-Related Neurological Injury Compensation PlanAfter a Decade. D. M. Studdert, L. A. Fritz, T. A.Brennan. 2002. (Reprinted from Journal of HealthPolitics, Policy and Law, Vol. 25. No. 3, June 2000,Duke University Press.)

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Florida’s Birth-Related Neurological InjuryCompensation Plan (NICA) is the most significantexperiment in compensation for medical injuryundertaken to date in the United States. As NICAenters its second decade of operation, maintainingits jurisdictional integrity has emerged as a keychallenge for policymakers in Florida. In thisarticle, the authors explore the relationship thathas developed between NICA and the tort systemas competing avenues for families to obtaincompensation for severe birth-related neurologicalinjury. By linking NICA claims with data onmalpractice claims filed in Florida, the authorsfound a persistence of “bad baby” litigationdespite NICA’s implementation, with manyfamilies pursuing claims in both forums. Anexplanation for these results can be traced to keyfeatures of the plan’s design—primarily, the wayin which “exclusive” jurisdiction over injuries isdetermined and the restrictive nature of thecompensation criteria that are used. The findingsof this study may help efforts to consolidateNICA’s role in injury compensation and informfuture design of alternative compensationsystems.

RP-896-ICJ—Costs of Medical Injuries in Utah andColorado. E. J. Thomas, D. M. Studdert, J. P.Newhouse, B. I. W. Zbar, K. M. Howard, E. J.Williams, T. A. Brennan. 2000. (Reprinted fromInquiry, Vol. 36, Fall 1999.)

Patient injuries are thought to have a substantialfinancial impact on the health care system, butrecent studies have been limited to estimating thecosts of adverse drug events in teaching hospitals.This analysis estimated the costs of all types ofpatient injuries from a representative sample ofhospitals in Utah and Colorado. The authorsdetected 459 adverse events (of which 265 werepreventable) by reviewing the medical records of14,732 randomly selected 1992 discharges from 28hospitals. The total costs (all results are indiscounted 1996 dollars) were $661,889,000 foradverse events and $308,382,000 for preventableadverse events. Health care costs totaled$348,081,000 for all adverse events and$159,245,000 for the preventable adverse events.Fifty-seven percent of the adverse-event health

care costs and 46 percent of the preventableadverse-event costs were attributed to outpatientmedical care. Surgical complications, adverse drugevents, and delayed or incorrect diagnoses andtherapies were the most expensive types ofadverse events. The costs of adverse events weresimilar to the national costs of caring for peoplewith HIV/AIDS, and totaled 4.8 percent of percapita health care expenditures in these states.

RP-915-ICJ—ADR Research at the Crossroads.D. R. Hensler. 2000. (Reprinted from Journal ofDispute Resolution, Vol. 2000, No. 1, 2000.)

This article traces the development of empiricalresearch on alternative dispute resolution and itsimpact on the legal system. In the 1980s,legislators, judges, court administrators, andlawyers acted largely as interested onlookers inthe research process. But, as the author notes,research on court ADR—especially with anevaluative component—has become unwelcome insome quarters. The author recalls RAND’s reporton the results of ADR under the controversialCivil Justice Reform Act of 1996 and the surprisinglevel of criticism the study received from the ADRcommunity. The author cites other examples ofhostility regarding ADR research directed at theacademic community at large, and notes thatempirical research nevertheless continues apace.The author offers several explanations for thecurrent attitudes on evaluative ADR research, andconcludes by posing questions on the future ofthis research.

RP-920-ICJ—Punitive Damages and Deterrence ofEfficiency-Promoting Analysis: A ProblemWithout a Solution. S. Garber. 2000. (Reprintedfrom Stanford Law Review, Vol. 52, No. 6, July2000.)

In this article, the author comments on ProfessorViscusi’s analysis regarding a threat that punitivedamages pose to economic efficiency (Kip W.Viscusi, “Corporate Risk Analysis: A RecklessAct?” Stanford Law Review, Vol. 52, No. 3). Theauthor discusses Viscusi’s implicit assumptionthat promotion of economic efficiency is the onlylegitimate social goal of punitive damages, andcomments on the strength of Viscusi’s historical

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evidence that punitive damages are often assessedbecause companies perform risk or cost-benefitanalysis. The author also sketches a theory of whythe threat of such assessments is likely to detersocially worthwhile analysis in many cases andcomments on potential policy responses.

RP-921-ICJ—The Impact of a Disabling WorkplaceInjury on Earnings and Labor Force Participation.R. T. Reville. 2000. (Reprinted from J. C.Haltiwanger et al., eds., The Creation and Analysis ofEmployer-Employee Matched Data, Elsevier, 1999.)

When a workplace injury leaves a worker with aphysical impairment that reduces his or her abilityto work, the worker is eligible for permanentpartial disability (PPD) benefits in California. Inthis article, the author estimates the lost earningsof PPD claimants in California over the four to fiveyears following an injury, and estimates thefraction of the earnings loss that is replaced byworkers’ compensation indemnity benefits. Toexamine the long-term wage losses of injuredworkers, the study employed a unique database ofworkers’ compensation claims that was linked toquarterly wage data, before and after injury,maintained by the California state agencyadministering unemployment insurance. Theauthor reports the research results on earningsloss and wage replacement for a full sample ofPPD claimants and reports the results by severityof the disability as measured by disability rating.

RP-939-ICJ—Permanent Partial Disability fromOccupational Injuries: Earnings Losses andReplacement in Three States. J. E. Biddle, L. I.Boden, R. T. Reville. 2001. (Reprinted fromEnsuring Health and Income Security for an AgingWorkforce, Peter P. Budetti, et al., eds., Kalamazoo,Mich.: W.E. Upjohn Institute for EmploymentResearch, 2001.)

The labor-market consequences of disability caninclude job loss, reduced income, earlierretirement, and greater reliance on private andsocial insurance systems to provide incomesecurity. In this article, the authors examine thelabor-market consequences of work-relateddisabling injuries and their relationship to the ageof injured workers in three states: California,

Washington, and Wisconsin. They also reportestimates of the adequacy of workers’compensation income benefits received forworkplace injuries. The authors present evidencethat older workers suffer proportionately moreinjuries with permanently disabling consequencesand the losses suffered by older workers aregreater, on average, than those of youngerworkers. They also find that injury-related non-employment is higher among older workers and,moreover, the older workers in the states thatwere studied appear to recover a smallerproportion of their losses from workers’compensation than do other injured workers.

RP-951-ICJ—Beyond “It Just Ain’t Worth It”:Alternative Strategies for Damage Class ActionReform. D. R. Hensler, T. D. Rowe, Jr. 2001.(Reprinted from Law and Contemporary Problems,Vol. 64, Spring/Summer 2001, Duke UniversitySchool of Law, Durham, North Carolina.)

In this article, the authors explore alternativestrategies for class-action reform aimed atimproving the cost-benefit ratio of damage classactions. They sought to identify mechanisms forenhancing the court system’s capacity to screenout non-meritorious suits, while preserving accessto the courts for meritorious actions. Among otherfindings, the authors recommend that judges usetheir existing authority to regulate class actionmore strictly by more vigorously reviewing andapproving settlements and fee-award requests.The authors also recommend further scholarlyinvestigation of the merits and demerits of two-way, loser-pays fee shifting with liability on theplaintiffs’ side borne by class counsel. 32 pages.

RP-972-ICJ—New Methods and Data Sources forMeasuring Economic Consequences of WorkplaceInjuries. R. T. Reville, J. Bhattacharya, and L. R.Sager Weinstein. 2002. (Reprinted from AmericanJournal of Industrial Medicine, Vol. 40, No. 4,October 2001.)

The evaluation of programs and policies to reducethe incidence of workplace injuries requires thatthe consequences of those injuries are estimatedcorrectly. Workplace injuries are complex events,and the availability of data that reflects that

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complexity is the largest obstacle to accurateestimation. In this article, the authors review theliterature on the consequences of workplaceinjuries for both workers and employers. Theyfocus on data sources, particularly linkedadministrative data from various public agencies.The authors also review other approaches toobtaining data to examine the consequences ofworkplace injuries, including public-uselongitudinal survey data, primary data collection,and linked employee-employer databases. Theauthors found that longitudinal survey databases,including the National Longitudinal Survey ofYouth and the Health and Retirement Survey, arevery promising although largely untapped sourcesof data on workplace injuries. They also foundthat linked employee-employer databases are wellsuited for the study of consequences foremployers.

RP-979-ICJ—Revisiting the Monster: New Mythsand Realities of Class Action and Other LargeScale Litigation. D. R. Hensler. 2002. (Reprintedfrom Duke Journal of Comparative & InternationalLaw, Vol. 11, No. 2, 2001).

In previous studies, the author has examined thechallenges that mass torts pose to the legal system.In this article, she extends her consideration ofmass tort litigation to include what she terms “thenew social policy torts”: suits against tobaccocompanies, firearms manufacturers, and managedcare organizations that are intended to changepublic policy. This article presents an analysis ofthe present nature of class action and other large-scale litigation in the United States. The authordiscusses varieties of large-scale litigation andpresents data on patterns of usage of devices forpursuing such litigation, focusing on damage classactions. The author concludes by offeringcomments on likely future trends and notes that inorder to choose appropriate procedures forresolving the issues surrounding large-scalelitigation, careful consideration must be given tothe practical consequences of alternativeprocedures.

RP-983-ICJ—The Frequency of Excess AutoPersonal Injury Claims. S. J. Carroll and

A. F. Abrahamse. 2002. (Reprinted from AmericanLaw and Economics Review, Vol. 3, No. 2, 2001.)

Over the past decade and a half, automobileinsurance premiums, particularly for personalinjury coverages, have grown rapidly across thecountry. This article analyzes auto personal injuryclaims across states to estimate the frequency ofclaims for nonexistent or preexisting injuries. Theauthors developed a series of hypothesesregarding the specific claiming patterns thatwould signal the presence of excess claims. Theydrew on a nationally representative sample ofauto accident injury claims that were closedduring 1987 to test these hypotheses. The resultsstrongly support the authors’ hypotheses. Theyconclude that approximately 42 percent ofreported “soft-injury” claims in the dollar-threshold and tort states are for nonexistent orpreexisting injuries.

RP-1049-ICJ—Reinventing the Double Helix: ANovel and Nonobvious Reconceptualization of theBiotechnology Patent. L. J. Demaine and A. X.Fellmeth. 2003. (Reprinted from Stanford LawReview, Vol. 55, No. 303, November 2002).

Courts and administrative agencies have clashedover issues raised by gene patenting. In thisarticle, the authors first offer a synopsis of thehistorical problems that the patent system hasencountered in dealing with innovations such asthose flowing from the Human Genome Project.The authors then discuss the prohibitions on thepatenting of naturally occurring phenomena andthe patenting of preexisting products that havemerely been isolated, purified, or otherwisealtered in some way. The authors then analyze thedoctrine as it relates to the 1952 Patent Act. Theauthors go on to discuss the differences betweenbiochemical innovations and other types ofinnovations and present the “substantialtransformation test” as a bridge between properpatent doctrine and omissions in the currentPatent Act. The authors demonstrate how the testcan be used to distinguish new biotechnologyinventions from unpatentable discoveries ofnatural phenomena.

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RP-1090—Our Courts, Ourselves: How theAlternative Dispute Resolution Movement Is Re-Shaping Our Legal System. D. R. Hensler. 2004(reprinted from Penn State Law Review, TheDickinson School of Law, Volume 108, No. 1,2003).

Federal courts are now required by law to offersome form of alternative dispute resolution(ADR), and many state courts require parties toattempt to resolve their cases through mediationbefore they can obtain a trial date. The authornotes that there are reasons to believe that theADR movement has had some success over the

past 25 years in changing business and legaldecisionmakers’ views on how best to resolvelegal disputes. In this article, the author presents apersonal critical perspective on one part of thehistory of the dispute resolution movement in theUnited States—the evolution of ADR in the legalworld. The author presents historical antecedents,discusses the “community justice movement,”the business community’s joining of the ADRmovement, and offers final thoughts on thedispute resolution movement’s contribution tochanges in the view of the justice system.

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AUTHOR INDEX

ABRAHAMSE, A. F.

MR-540-ICJThe Effects of a Choice Auto Insurance Plan onInsurance Costs ......................................... p. 32

MR-970-ICJThe Effects of a Choice Automobile Insurance PlanOn Insurance Costs and Compensation: AnUpdated Analysis ...................................... p. 36

MR-1134-ICJThe Effects of a Choice Automobile Insurance Planon Insurance Costs and Compensation: AnAnalysis Based on 1997 Data ...................... p. 37

MR-1199-ICJThe Effects of Third-Party Bad Faith Doctrine onAutomobile Insurance Costs and Compensation................................................................. p. 37

R-3999-HHS/ICJCompensation for Accidental Injuries in theUnited States ............................................. p. 58

R-3999/1-HHS/ICJCompensation for Accidental Injuries in theUnited States: Executive Summary.............. p. 58

N-3230-HHS/ICJCompensation for Accidental Injuries: ResearchDesign and Methods ................................. p. 64

IP-146-1The Effects of a Proposed No-Fault Plan on theCosts of Auto Insurance in California: An UpdatedAnalysis.................................................... p. 73

IP-157The Effects of Proposition 213 on the Costs of AutoInsurance in California............................... p. 73

IP-174The Effects of a No-Pay/No-Play Plan on theCosts of Auto Insurance in Texas ................ p. 73

DB-139-ICJThe Costs of Excess Medical Claims for Automo-bile Personal Injuries.................................. p. 78

DB-397-ICJAsbestos Litigation Costs and Compensation: AnInterim Report ........................................... p. 78

DRU-1264-ICJLiability System Incentives to Consume ExcessMedical Care.............................................. p. 82

DRU-1609-ICJThe Effects of a Choice Automobile Insurance PlanUnder Consideration by the Joint Economic Com-mittee of the United States Congress............ p. 83

RP-254Consumer Choice in the Auto Insurance Market................................................................. p. 88RP-442The Costs of Consumer Choice for Auto Insurancein States Without No-Fault Insurance .......... p. 91

RP-518The Comparative Costs of Allowing ConsumerChoice for Auto Insurance in All Fifty States................................................................. p. 92

RP-707The Effects of a Choice Auto Insurance Plan onInsurance Costs and Compensation ............. p. 94

RP-745The Effect of Allowing Motorists to Opt Out ofTort Law in the United States ..................... p. 94

RP-810The Frequency of Excess Claims for AutomobilePersonal Injuries......................................... p. 96


RP-983The Frequency of Excess Auto Personal InjuryClaims .......................................................p. 101

104 Author Index

January 2005

ACTON, J. P.

R-3838-ICJUnderstanding Superfund: A Progress Report................................................................. p. 57

R-4132-ICJSuperfund and Transaction Costs: The Experi-ences of Insurers and Very Large IndustrialFirms ........................................................ p. 60

ADAMS, J. L.

R-4019-ICJNo-Fault Approaches to Compensating PeopleInjured in Automobile Accidents ................ p. 59

RP-794Product and Stock Market Responses toAutomotive Product Liability Verdicts........ p. 95

ADAMSON, D. M.

R-4019/1-ICJNo-Fault Automobile Insurance: A PolicyPerspective................................................ p. 59

OP-135-ICJIssues and Options for Government Interventionin the Market for Terrorism Insurance......... p. 75

ADLER, J. W.

R-2922-ICJThe Pace of Litigation: Conference Proceedings................................................................. p. 47

R-3071-ICJSimple Justice: How Litigants Fare in thePittsburgh Court Arbitration Program......... p. 50

N-1965-ICJCourt-Administered Arbitration: An Alternativefor Consumer Dispute Resolution ............... p. 61

ANDERSON, M. C.

RP-830Goal Conflict in Juror Assessments of Compen-satory and Punitive Damages ..................... p. 96

ARLINGTON, J.


ASCH, S.

WR-203-ICJEvaluating Medical Treatment Guideline Sets forInjured Workers in California...................... p. 76

ASHWOOD, S.

DB-397-ICJAsbestos Litigation Costs and Compensation: AnInterim Report ........................................... p. 78

BAILIS, D.S.

RP-606Estimating Liability Risks with the Media as YourGuide ........................................................ p. 92

BARTH, P. S.

MR-920-ICJCompensating Permanent Workplace Injuries: AStudy of the California System .................... p. 35

BERRY, S. H.

R-3999-HHS/ICJCompensation for Accidental Injuries in theUnited States.............................................. p. 58

R-3999/1-HHS/ICJCompensation for Accidental Injuries in theUnited States: Executive Summary .............. p. 58

N-3230-HHS/ICJCompensation for Accidental Injuries: ResearchDesign and Methods................................... p. 64

BETANCOURT, D. R.

N-2257-ICJCourt-Annexed Arbitration: The National Picture................................................................. p. 62

BHATTACHARYA, J.

RP-972-ICJNew Methods and Data Sources for MeasuringEconomic Consequences of Workplace Injuries.................................................................p. 100

Author Index 105

January 2005

BIDDLE, J. E.

MR-1414-ICJAn Evaluation of New Mexico Workers’ Compen-sation Permanent Partial Disability and Return toWork ......................................................... p. 39

RP-939Permanent Partial Disability from OccupationalInjuries: Earnings Losses and Replacement inThree States................................................p. 100

BODEN, L. I.

MR-1414-ICJAn Evaluation of New Mexico Workers’ Compen-sation Permanent Partial Disability and Return toWork ......................................................... p. 39RP-939Permanent Partial Disability from OccupationalInjuries: Earnings Losses and Replacement inThree States................................................p. 100

BORUM, R.

MR-1340-CSCRThe Effectiveness of Involuntary OutpatientTreatment: Empirical Evidence and the Experienceof Eight States............................................. p. 38

BOWER, A.

RP-809Newspaper Coverage of Automotive ProductLiability Verdicts ....................................... p. 95

BRENNAN, T. A.

RP-885Negligent Care and Malpractice ClaimingBehavior in Utah and Colorado ................... p. 98

RP-886The Jury Is Still In: Florida’s Birth-Related Neuro-logical Injury Compensation Plan After a Decade.................................................................. p. 98

RP-896Costs of Medical Injuries in Utah and Colorado.................................................................. p. 99

BRYANT, D. L.

R-3676-ICJAlternative Adjudication: An Evaluation of theNew Jersey Automobile Arbitration Program................................................................. p. 55

N-2909-ICJJudicial Arbitration in California: An Update................................................................. p. 64

BURSTIN, H. R.


CARROLL, S. J.

MR-540-ICJThe Effects of a Choice Auto Insurance Plan onInsurance Costs.......................................... p. 32

MR-888-ICJPunitive Damages in Financial Injury JuryVerdicts ..................................................... p. 34

MR-889-ICJPunitive Damages in Financial Injury JuryVerdicts: Executive Summary ..................... p. 35

MR-970-ICJThe Effects of a Choice Automobile Insurance PlanOn Insurance Costs and Compensation: AnUpdated Analysis....................................... p. 36

MR-1134-ICJThe Effects of a Choice Automobile Insurance Planon Insurance Costs and Compensation: AnAnalysis Based on 1997 Data ....................... p. 37

MR-1199-ICJThe Effects of Third-Party Bad Faith Doctrine onAutomobile Insurance Costs and Compensation................................................................. p. 37R-3554-ICJAssessing the Effects of Tort Reforms .......... p. 54

R-4019-ICJNo-Fault Approaches to Compensating PeopleInjured in Automobile Accidents ................. p. 59

R-4019/1-ICJNo-Fault Automobile Insurance: A PolicyPerspective ................................................ p. 59

106 Author Index

January 2005

N-1994-ICJJury Awards and Prejudgment Interest in TortCases ........................................................ p. 61

IP-146-1The Effects of a Proposed No-Fault Plan on theCosts of Auto Insurance in California: AnUpdated Analysis ...................................... p. 73

IP-157The Effects of Proposition 213 on the Costs of AutoInsurance in California............................... p. 73

IP-174The Effects of a No-Pay/No-Play Plan on theCosts of Auto Insurance in Texas ................ p. 73


DB-139-ICJThe Costs of Excess Medical Claims forAutomobile Personal Injuries ..................... p. 78

DB-362.0-ICJAsbestos Litigation in the U.S.: A New Look at anOld Issue................................................... p. 78

DB-397-ICJAsbestos Litigation Costs and Compensation: AnInterim Report........................................... p. 78

CT-141-1Effects of an Auto-Choice Automobile InsurancePlan on Costs and Premiums ....................... p. 81

CT-143Punitive Damages in Financial Injury JuryVerdicts .................................................... p. 81

CT-144Effects of a Choice Automobile Insurance Plan onCosts and Premiums: Testimony Presented to theSenate Commerce, Science, and TransportationCommittee, July 1997 ................................. p. 81

DRU-1264-ICJLiability System Incentives to Consume ExcessMedical Care ............................................. p. 82

DRU-1609-ICJThe Effects of a Choice Automobile Insurance PlanUnder Consideration by the Joint Economic Com-mittee of the United States Congress ........... p. 83

RP-229No-Fault Approaches to Compensating AutoAccident Victims ........................................ p. 88

RP-254Consumer Choice in the Auto Insurance Market................................................................. p. 88

RP-442The Costs of Consumer Choice for Auto Insurancein States Without No-Fault Insurance .......... p. 91



RP-745The Effect of Allowing Motorists to Opt Out ofTort Law in the United States ...................... p. 94

RP-810The Frequency of Excess Claims for AutomobilePersonal Injuries......................................... p. 96


RP-983-ICJThe Frequency of Excess Auto Personal InjuryClaims .......................................................p. 101

CHIN, A. W.

R-3249-ICJDeep Pockets, Empty Pockets: Who Wins in CookCounty Jury Trials...................................... p. 51

COHEN, L. R.

R-2918-ICJWorkers’ Compensation and Workplace Safety:Some Lessons from Economic Theory .......... p. 46

CURTIS, D. E.

RP-584Individuals Within the Aggregate: Relationships,Representation, and Fees ............................ p. 92

Author Index 107

January 2005

DANZON, P. M.

R-2458-HCFAContingent Fees for Personal Injury Litigation................................................................. p. 43

R-2622-HCFAThe Disposition of Medical Malpractice Claims................................................................. p. 43

R-2623-HCFAWhy Are Malpractice Premiums So High Or SoLow?......................................................... p. 43

R-2792-ICJThe Resolution of Medical Malpractice Claims:Modeling the Bargaining Process................ p. 44

R-2793-ICJThe Resolution of Medical Malpractice Claims: Re-search Results and Policy Implications ........ p. 45

R-2870-ICJ/HCFAThe Frequency and Severity of Medical Malprac-tice Claims ................................................ p. 45

R-3410-ICJNew Evidence on the Frequency and Severity ofMedical Malpractice Claims ....................... p. 51

P-6800Settlement Out of Court: The Disposition ofMedical Malpractice Claims ....................... p. 67

P-7211-ICJThe Effects of Tort Reforms on the Frequency andSeverity of Medical Malpractice Claims: A Sum-mary of Research Results............................ p. 68

DARLING-HAMMOND, L.

R-2716-ICJThe Law and Economics of Workers’ Compen-sation........................................................ p. 43

R-2716/1-ICJThe Law and Economics of Workers’ Compen-sation: Executive Summary ........................ p. 44

DEMAINE, L. J.

RP-1049-ICJReinventing the Double Helix: A Novel andNonobvious Reconceptualization of the Biotech-nology Patent ............................................ p. 101

D’ERTOUZOS, J. N.

R-3602-ICJThe Legal and Economic Consequences ofWrongful Termination................................ p. 55

R-3989-ICJLabor Market Responses to Employer Liability................................................................. p. 58

DIXON, L. S.

MR-204-EPA/RCPrivate-Sector Cleanup Expenditures and Transac-tion Costs at 18 Superfund Sites................... p. 31

MR-455-ICJFixing Superfund: The Effect of the ProposedSuperfund Reform Act of 1994 on TransactionCosts ......................................................... p. 31

MR-695-ICJCalifornia’s Ozone-Reduction Strategy for Light-Duty Vehicles: Direct Costs, Direct EmissionEffects, and Market Responses..................... p. 33

MR-695/1-ICJCalifornia’s Ozone-Reduction Strategy for Light-Duty Vehicles: An Economic Assessment ..... p. 33

MR-1171-EPAThe Financial Implications of Releasing SmallFirms and Small-Volume Contributors fromSuperfund Liability .................................... p. 37

MR-1256-ICJ/PPICFighting Air Pollution in Southern California byScrapping Old Vehicles............................... p. 38

MR-1439-ICJChanges in the Standards for Admitting ExpertEvidence in Federal Civil Cases Since the DaubertDecision..................................................... p. 40

MG-264-ICJCompensation for Losses from the 9/11 Attacks................................................................. p. 42

R-4132-ICJSuperfund and Transaction Costs: The Experi-ences of Insurers and Very Large IndustrialFirms......................................................... p. 59

OP-135-ICJIssues and Options for Government Interventionin the Market for Terrorism Insurance.......... p. 75

108 Author Index

January 2005

CT-102Superfund and Transaction Costs: The Experi-ences of Insurers and Very Large IndustrialFirms ........................................................ p. 80

CT-111RAND Research on Superfund Transaction Costs:A Summary of Findings to Date.................. p. 80

CT-125Superfund Liability Reform: Implications forTransaction Costs and Site Cleanup ........... p. 80

CT-137Economic Perspectives on Revising California’sZero-Emission Vehicle Mandate ................. p. 80

DRU-1266-1-ICJMaking ZEV Policy Despite Uncertainty: An An-notated Briefing for the California Air ResourcesBoard........................................................ p. 83

DOMBEY-MOORE, B.

MR-969-ICJClass Action Dilemmas: Pursuing Public Goals forPrivate Gain .............................................. p. 35

MR-969/1-ICJClass Action Dilemmas: Pursuing Public Goals forPrivate Gain: Executive Summary............... p. 36

IP-184A Flood of Litigation? Predicting the Conse-quences of Changing Legal Remedies Available toERISA Beneficiaries ................................... p. 74

DREZNER, D. S.

MR-204-EPA/RCPrivate-Sector Cleanup Expenditures and Transac-tion Costs at 18 Superfund Sites.................. p. 31

R-4132-ICJSuperfund and Transaction Costs: The Experi-ences of Insurers and Very Large Industrial Firms................................................................. p. 59

DUNWORTH, T.

MR-800-ICJJust, Speedy, and Inexpensive? An Evaluation ofJudicial Case Management Under the Civil JusticeReform Act................................................ p. 33

MR-801-ICJImplementation of the Civil Justice Reform Act inPilot and Comparison Districts.................... p. 33

MR-802-ICJAn Evaluation of Judicial Case ManagementUnder the Civil Justice Reform Act .............. p. 34

MR-803-ICJAn Evaluation of Mediation and Early NeutralEvaluation Under the Civil Justice Reform Act................................................................. p. 34

R-3668-ICJProduct Liability and the Business Sector: Litiga-tion Trends in Federal Courts...................... p. 55

R-3885-ICJStatistical Overview of Civil Litigation in theFederal Courts ........................................... p. 57

RP-361Preliminary Observations on Implementation ofthe Pilot Program of the Civil Justice Reform Actof 1990....................................................... p. 90

RP-861Just, Speedy, and Inexpensive? An Evaluation ofJudicial Case Management Under the Civil JusticeReform Act: A Summary............................. p. 97

EADS, G. C.

R-3022-ICJDesigning Safer Products: Corporate Responses toProduct Liability Law and Regulation.......... p. 48

P-7089-ICJDesigning Safer Products: Corporate Responses toProduct Liability Law and Regulation.......... p. 67

EBENER, P. A.

MR-259-ICJPrivate Dispute Resolution in the BankingIndustry..................................................... p. 31

R-2732-ICJCourt Efforts to Reduce Pretrial Delay: A NationalInventory................................................... p. 44

R-2732/1-ICJCourt Efforts to Reduce Pretrial Delay: A NationalInventory. Executive Summary ................... p. 44

Author Index 109

January 2005

R-3042-ICJCosts of Asbestos Litigation........................ p. 49

R-3132-ICJVariation in Asbestos Litigation Compensationand Expenses ............................................ p. 50

R-3165-ICJManaging the Unmanageable: A History of CivilDelay in the Los Angeles Superior Court..... p. 51

R-3324-ICJAsbestos in the Courts: The Challenge of MassToxic Torts ................................................ p. 52

R-3421-ICJCosts and Compensation Paid in Aviation Acci-dent Litigation........................................... p. 53

R-3602-ICJThe Legal and Economic Consequences ofWrongful Termination ............................... p. 55


R-3684-ICJExecutive Summaries of the Aviation AccidentStudy........................................................ p. 56

R-3708-ICJThe Perception of Justice: Tort Litigants’ Views ofTrial, Court-Annexed Arbitration, and JudicialSettlement Conferences .............................. p. 56



N-2257-ICJCourt-Annexed Arbitration: The National Picture................................................................. p. 62

N-2773-ICJAviation Accident Litigation Survey: Data Collec-tion Forms................................................. p. 63

N-3230-HHS/ICJCompensation for Accidental Injuries: ResearchDesign and Methods.................................. p. 64

ETTEDGUI, E.

MR-1122/1-ICJSafety in the Skies: Personnel and Parties in NTSBAviation Accident Investigations: Master Volume................................................................. p. 36

MR-1122-ICJSafety in the Skies: Personnel and Parties in NTSBAviation Accident Investigations................. p. 37

FARLEY, D. O.

MG-280-ICJAssessment of 24-Hour Care Options forCalifornia................................................... p. 42

WR-163-1-ICJAssessment of 24-Hour Care Options forCalifornia................................................... p. 76

FELLMETH, A. X.

RP-1049-ICJReinventing the Double Helix: A Novel andNonobvious Reconceptualization of the Biotech-nology Patent.............................................p. 101

FELSTINER, W. L. F.


R-3042-ICJCosts of Asbestos Litigation ........................ p. 49

R-3132-ICJVariation in Asbestos Litigation Compensationand Expenses ............................................. p. 50

R-3324-ICJAsbestos in the Courts: The Challenge of MassToxic Torts................................................. p. 52

R-3708-ICJThe Perception of Justice: Tort Litigants’ Views ofTrial, Court-Annexed Arbitration, and JudicialSettlement Conferences............................... p. 56

P-7180-ICJThe Impact of Fee Arrangement on LawyerEffort......................................................... p. 68

110 Author Index

January 2005

FRITZ, L. A.

RP-886The Jury Is Still In: Florida’s Birth-Related Neuro-logical Injury Compensation Plan After a Decade.................................................................. p. 98

GALANTER, M.

RP-282How to Improve Civil Justice Policy............ p. 89

GALWAY, L.

MR-1425-ICJImproving Dispute Resolution for California’sInjured Workers ........................................ p. 39

MR-1425/1-ICJImproving Dispute Resolution for California’sInjured Workers: Executive Summary ......... p. 40

GARBER, S.

MR-695-ICJCalifornia’s Ozone-Reduction Strategy for Light-Duty Vehicles: Direct Costs, Direct EmissionEffects, and Market Responses.................... p. 33

MR-695/1-ICJCalifornia’s Ozone-Reduction Strategy for Light-Duty Vehicles: An Economic Assessment .... p. 33

MR-1256-ICJ/PPICFighting Air Pollution in Southern California byScrapping Old Vehicles .............................. p. 38

R-4285-ICJProduct Liability and the Economics of Pharma-ceuticals and Medical Devices .................... p. 60

CT-137Economic Perspectives on Revising California’sZero-Emission Vehicle Mandate ................. p. 80

DRU-1266-1-ICJMaking ZEV Policy Despite Uncertainty: An An-notated Briefing for the California Air ResourcesBoard........................................................ p. 83

RP-747Product Liability, Punitive Damages, BusinessDecisions, and Economic Outcomes ............ p. 95

RP-755Risk Premiums for Environmental Liability: DoesSuperfund Increase the Cost of Capital? ...... p. 95

RP-794Product and Stock Market Responses to Auto-motive Product Liability Verdicts ................ p. 95

RP-809Newspaper Coverage of Automotive ProductLiability Verdicts........................................ p. 95RP-920Punitive Damages and Deterrence of Efficiency-Promoting Analysis: A Problem Without aSolution..................................................... p. 99

GARTH, B. G.

RP-282How to Improve Civil Justice Policy ............ p. 89

GELLER, A. B.

MR-1425-ICJImproving Dispute Resolution for California’sInjured Workers ......................................... p. 39

MR-1425/1-ICJImproving Dispute Resolution for California’sInjured Workers: Executive Summary.......... p. 40

GIDDENS, E.

MR-969-ICJClass Action Dilemmas: Pursuing Public Goals forPrivate Gain............................................... p. 35

MR-969/1-ICJClass Action Dilemmas: Pursuing Public Goals forPrivate Gain: Executive Summary ............... p. 36

MR-1268-ICJPermanent Disability at Private, Self-InsuredFirms: A Study of Earnings Loss, Replacement,and Return to Work for Workers’ CompensationClaimants .................................................. p. 38

GILL, B.

MR-1439-ICJChanges in the Standards for Admitting ExpertEvidence in Federal Civil Cases Since the DaubertDecision..................................................... p. 40

Author Index 111

January 2005

GOLINELLI, D.

MG-234-ICJCapping Non-Economic Awards in MedicalMalpractice Trials: California Jury Verdicts UnderMICRA ..................................................... p. 42

GREENBERG, M.

MG-280-ICJAssessment of 24-Hour Care Options forCalifornia.................................................. p. 42

WR-163-1-ICJAssessment of 24-Hour Care Options forCalifornia.................................................. p. 76

GRESENZ, C. R.

MR-969/1-ICJClass Action Dilemmas: Pursuing Public Goals forPrivate Gain .............................................. p. 36

IP-184A Flood of Litigation? Predicting the Con-sequences of Changing Legal Remedies Availableto ERISA Beneficiaries................................ p. 74

RP-860Expanded Managed Care Liability: What Impacton Employer Coverage? ............................ p. 97

GROSS, J.



DB-220-ICJPreliminary Results of the RAND Study of ClassAction Litigation........................................ p. 78



HAGGSTROM, G. W.

MR-204-EPA/RCPrivate-Sector Cleanup Expenditures and Trans-action Costs at 18 Superfund Sites................ p. 31

R-3050-ICJAutomobile Accident Compensation: Vol. 1, WhoPays How Much How Soon?....................... p. 49

R-3051-ICJAutomobile Accident Compensation: Vol. 2,Payments by Auto Insurers ......................... p. 49

R-3053-ICJAutomobile Accident Compensation: Vol. 4, StateRules ......................................................... p. 50


N-2418-ICJLimiting Liability for Automobile Accidents: AreNo-Fault Tort Thresholds Effective? ............ p. 62

RP-755Risk Premiums for Environmental Liability: DoesSuperfund Increase the Cost of Capital?....... p. 95

HAMMITT, J. K.


R-3051-ICJAutomobile Accident Compensation: Vol. 2, Pay-ments by Auto Insurers............................... p. 49


N-2418-ICJLimiting Liability for Automobile Accidents: AreNo-Fault Tort Thresholds Effective? ............ p. 62

HARBER, P.


112 Author Index

January 2005

HASENFELD, R.

WR-203-ICJEvaluating Medical Treatment Guideline Sets forInjured Workers in California ..................... p. 76

HAWKEN, A.

MR-1199-ICJThe Effects of Third-Party Bad Faith Doctrine onAutomobile Insurance Costs and Compensation................................................................. p. 37

HAYDEN, O.



HENNING, G.


MR-1122-ICJSafety in the Skies: Personnel and Parties in NTSBAviation Accident Investigations ................ p. 37

HENSLER, D. R.

MR-528-ICJCalifornia Lawyers View the Future: A Report tothe Commission on the Future of the LegalProfession and the State Bar........................ p. 32

MR-941-ICJDiscovery Management: Further Analysis of theCivil Justice Reform Act Evaluation Data .... p. 35



R-2733-ICJJudicial Arbitration in California: The First Year................................................................. p. 44

R-2733/1-ICJJudicial Arbitration in California: The First Year:Executive Summary.................................... p. 44

R-2922-ICJThe Pace of Litigation: Conference Proceedings................................................................. p. 47R-3071-ICJSimple Justice: How Litigants Fare in the Pitts-burgh Court Arbitration Program................ p. 50


R-3583-ICJTrends in Tort Litigation: The Story Behind theStatistics .................................................... p. 54





N-1965-ICJCourt-Administered Arbitration: An Alternativefor Consumer Dispute Resolution................ p. 61

N-2186-ICJCourt-Ordered Arbitration: The California Expe-rience ........................................................ p. 61

N-2444-ICJWhat We Know and Don’t Know About Court-Administered Arbitration ........................... p. 62


P-6963Court-Annexed Arbitration in the State TrialCourt System ............................................. p. 67

Author Index 113

January 2005

P-7027-ICJReforming the Civil Litigation Process: How CourtArbitration May Help ................................ p. 67

P-7210-ICJSummary of Research Results on the Tort LiabilitySystem ...................................................... p. 68

P-7271-ICJSummary of Research Results on Product Liability................................................................. p. 69

P-7287-ICJTrends in California Tort Liability Litigation................................................................. p. 70

P-7604Researching Civil Justice: Problems and Pitfalls................................................................. p. 71

P-7631-ICJResolving Mass Toxic Torts: Myths andRealities .................................................... p. 71

P-7775-ICJWhat We Know and Don’t Know About ProductLiability .................................................... p. 71

P-7776-ICJAsbestos Litigation in the United States: A BriefOverview: Statement.................................. p. 71

IP-184A Flood of Litigation? Predicting the Con-sequences of Changing Legal Remedies Availableto ERISA Beneficiaries................................ p. 74




DRU-1014-ICJTrends in Punitive Damages: Preliminary Datafrom Cook County, Illinois, and San Francisco,California.................................................. p. 82

RP-103Court-Ordered Arbitration: An Alternative View................................................................. p. 84

RP-107Assessing Claims Resolution Facilities: What WeNeed to Know............................................ p. 84

RP-109Science in the Court: Is There a Role for Alterna-tive Dispute Resolution? ........................... p. 85

RP-113Taking Aim at the American Legal System: TheCouncil on Competiveness’s Agenda for LegalReform ........................................................p. 86

RP-114Fashioning a National Resolution of AsbestosPersonal Injury Litigation: A Reply to ProfessorBrickman ................................................... p. 86

RP-226Reading the Tort Litigation Tea Leaves: What’sGoing on in the Civil Liability System.......... p. 88


RP-311Understanding Mass Personal Injury Litigation: ASocio-Legal Analysis................................... p. 89

RP-327Does ADR Really Save Money? The Jury’s StillOut............................................................ p. 89

RP-363Why We Don’t Know More About the Civil JusticeSystem and What We Could Do About It ..... p. 90

RP-446A Glass Half Full, a Glass Half Empty: The Use ofAlternative Dispute Resolution in Mass PersonalInjury Litigation ......................................... p. 91


RP-702The Real World of Tort Litigation ................ p. 93

RP-808Do We Need and Empirical Research Agenda onJudicial Independence?............................... p. 95

114 Author Index

January 2005

RP-860Expanded Managed Care Liability: What Impacton Employer Coverage? ............................. p. 97

RP-871-ICJA Research Agenda: What We Need to KnowAbout Court-Connected ADR..................... p. 98

RP-915-ICJADR Research at the Crossroads................. p. 99

RP-951-ICJBeyond “It Just Ain’t Worth It”: Alternative Strate-gies for Damage Class Action Reform ......... p. 100

RP-979-ICJRevisiting the Monster: New Myths and Realitiesof Class Action and Other Large Scale Litigation................................................................. p. 101

RP-1090-ICJOur Courts, Ourselves: How the AlternativeDispute Resolution Movement Is Re-Shaping OurLegal System. ............................................ p. 102

HILL, L. A.


MR-801-ICJImplementation of the Civil Justice Reform Act inPilot and Comparison Districts ................... p. 33

MR-802-ICJAn Evaluation of Judicial Case ManagementUnder the Civil Justice Reform Act ............. p. 34






HILL, P. T.

R-2904-ICJEducational Policymaking Through the CivilJustice System ............................................ p. 46

HOLLAND, E.

R-3602-ICJThe Legal and Economic Consequences of Wrong-ful Termination .......................................... p. 55

HOROWITZ, M.

RP-254Consumer Choice in the Auto Insurance Market................................................................. p. 88RP-442The Costs of Consumer Choice for Auto Insurancein States Without No-Fault Insurance .......... p. 91



HOUCHENS, R. L.


R-3052-ICJAutomobile Accident Compensation: Vol. 3,Payments from All Sources ......................... p. 50


Author Index 115

January 2005

HOWARD, K. M.

RP-896Costs of Medical Injuries in Utah and Colorado................................................................. p. 99

JAMIESON, P.


JOHNSON, L. L.

R-2882-ICJCost-Benefit Analysis and Voluntary Safety Stan-dards for Consumer Products..................... p. 46

KAISER, D.

RP-442The Costs of Consumer Choice for Auto Insurancein States Without No-Fault Insurance.......... p. 91

KAKALIK, J. S.





MR-941-ICJDiscovery Management: Further Analysis of theCivil Justice Reform Act Evaluation Data...... p. 35

R-2888-ICJCosts of the Civil Justice System: Court Expendi-tures for Processing Tort Cases ................... p. 46

R-2985-ICJCosts of the Civil Justice System: Court Expendi-tures for Various Types of Civil Cases......... p. 47



R-3391-ICJCosts and Compensation Paid in Tort Litigation................................................................. p. 52

R-3421-ICJCosts and Compensation Paid in AviationAccident Litigation..................................... p. 53


R-3684-ICJExecutive Summaries of the Aviation AccidentStudy......................................................... p. 56

R-3762-ICJAverting Gridlock: Strategies for Reducing CivilDelay in the Los Angeles Superior Court...... p. 56

R-4019-ICJNo-Fault Approaches to Compensating PeopleInjured in Automobile Accidents................. p. 59

R-4019/1-ICJNo-Fault Automobile Insurance: A Policy Per-spective ..................................................... p. 59

N-2773-ICJAviation Accident Litigation Survey: Data Collec-tion Forms ................................................. p. 63

N-2988-ICJStrategies for Reducing Civil Delay in Los AngelesSuperior Court: Technical Appendixes......... p. 64

P-7243-ICJCosts and Compensation Paid in Tort Litigation:Testimony Before the Joint Economic Committeeof the U.S. Congress.................................... p. 69

RP-229No-Fault Approaches to Compensating AutoAccident Victims ........................................ p. 88

RP-361Preliminary Observations on Implementation ofthe Pilot Program of the Civil Justice Reform Actof 1990....................................................... p. 90

116 Author Index

January 2005

RP-635Just, Speedy, and Inexpensive? Judicial CaseManagement Under the Civil Justice Reform Act................................................................. p. 93

RP-714Analyzing Discovery Management Policies:RAND Sheds New Light on the CJRA EvaluationData.......................................................... p. 94

RP-861Just, Speedy, and Inexpensive? An Evaluation ofJudicial Case Management Under the Civil JusticeReform Act: A Summary ............................ p. 97

KAGANOFF STERN, R.

MG-264-ICJCompensation for Losses from the 9/11 Attacks................................................................. p. 42

KARAN, A.

RP-745The Effect of Allowing Motorists to Opt Out ofTort Law in the United States ..................... p. 94

KAROLY, L. A.

R-3989-ICJLabor Market Responses to Employer Liability................................................................. p. 58

KING, E. M.

R-3421-ICJCosts and Compensation Paid in Aviation Acci-dent Litigation........................................... p. 53

R-3549-ICJComputing Economic Loss in Cases of WrongfulDeath........................................................ p. 54

R-3551-ICJEconomic Loss and Compensation in AviationAccidents .................................................. p. 54

R-3585-ICJDispute Resolution Following Airplane Crashes................................................................. p. 55



KLEIN, B. H.

R-3032-ICJThe Selection of Disputes for Litigation........ p. 49

KNIESNER, T. J.

R-2716-ICJThe Law and Economics of Workers’ Compen-sation ........................................................ p. 43

R-2716/1-ICJThe Law and Economics of Workers’ Compen-sation: Executive Summary ......................... p. 44

KRAVITZ, R. L.

N-3448/1-RWJMalpractice Claims Data as a Quality Improve-ment Tool: I. Epidemiology of Error in FourSpecialties.................................................. p. 65

N-3448/2-RWJMalpractice Claims Data as a Quality Improve-ment Tool: II. Is Targeting Effective?............ p. 65

KRITZER, H. M.

P-7180-ICJThe Impact of Fee Arrangement on Lawyer Effort................................................................. p. 68

LAKDAWALLA, D.


WR-171-ICJInsurance, Self-Protection and the Economics ofTerrorism................................................... p. 76

WR-205-ICJHow Does Health Insurance Affect Workers’Compensation Filing?................................. p. 76

LEBOW, C. C.


Author Index 117

January 2005


LEWIS, E. G.




P-7812The Bad Apples? Malpractice Claims Experienceof Physicians with a Surplus Lines Insurer................................................................. p. 72

LILLARD, L. A.

R-2792-ICJThe Resolution of Medical Malpractice Claims:Modeling the Bargaining Process................ p. 44

R-2793-ICJThe Resolution of Medical Malpractice Claims: Re-search Results and Policy Implications ........ p. 45

P-6800Settlement Out of Court: The Disposition ofMedical Malpractice Claims ....................... p. 67

LIND, E. A.

R-3676-ICJAlternative Adjudication: An Evaluation of theNew Jersey Automobile Arbitration Program................................................................. p. 55R-3708-ICJThe Perception of Justice: Tort Litigants’ Views ofTrial, Court-Annexed Arbitration, and JudicialSettlement Conferences .............................. p. 56

R-3809-ICJ

Arbitrating High-Stakes Cases: An Evaluation ofCourt-Annexed Arbitration in a United StatesDistrict Court ............................................ p. 56




RP-117Alternative Dispute Resolution in Trial andAppellate Courts ........................................ p. 87

LIPSON, A. J.


R-2733/1-ICJJudicial Arbitration in California: The First Year:Executive Summary.................................... p. 44

N-2096-ICJCalifornia Enacts Prejudgment Interest: A CaseStudy of Legislative Action ......................... p. 61

LOUGHRAN, D. S.

MR-1384-ICJThe Effect of No-Fault Automobile Insurance onDriver Behavior and Automobile Accidents in theUnited States.............................................. p. 39

DRU-2832-ICJDeterring Fraud: The Role of General DamageAwards in Automobile Insurance Settlements................................................................. p. 83

MACCOUN, R. J.



118 Author Index

January 2005

R-3832-ICJExperimental Research on Jury Decision-Making................................................................. p. 57R-3999-HHS/ICJCompensation for Accidental Injuries in theUnited States ............................................. p. 58


N-2671-ICJGetting Inside the Black Box: Toward a BetterUnderstanding of Civil Jury Behavior ......... p. 63


IP-130Is There a “Deep Pocket” Bias in the Tort System?The Concern over Biases Against Deep-PocketDefendants................................................ p. 73

CT-136Improving Jury Comprehension in Criminal andCivil Trials ................................................ p. 80

RP-117Alternative Dispute Resolution in Trial andAppellate Courts ....................................... p. 87

RP-134Unintended Consequences of Court Arbitration: ACautionary Tale from New Jersey ............... p. 88

RP-238Inside the Black Box: What Empirical ResearchTells Us About Decisionmaking by Civil Juries................................................................. p. 88

RP-286Blaming Others to a Fault? ......................... p. 89

RP-606Estimating Liability Risks with the Media as YourGuide........................................................ p. 92RP-607Differential Treatment of Corporate Defendants byJuries: An Examination of the “Deep-Pockets”Hypothesis................................................ p. 93

RP-830Goal Conflict in Juror Assessments of Compen-satory and Punitive Damages ..................... p. 96

MACLEAN, C.


MADEY, D. L.

R-2904-ICJEducational Policymaking Through the CivilJustice System ............................................ p. 46

MANNING, W. G.




RP-858Lifetime Costs and Compensation for Injuries................................................................. p. 97

MARDESICH, C.




MARQUIS, M. S.



Author Index 119

January 2005


CT-103Economic Consequences of Work-Related Injuries................................................................. p. 80

DRU-1264-ICJLiability System Incentives to Consume ExcessMedical Care ............................................. p. 82

RP-858Lifetime Costs and Compensation for Injuries................................................................. p. 97

MARTIN, C. W.

MR-1457-ICJTrends in Earnings Loss from Disabling Work-place Injuries in California: The Role of EconomicConditions ................................................ p. 40

MARTIN, J. W., JR.

P-8048Establishing a Good-Faith Defense to Punitive-Damage Claims ......................................... p. 72

MATTKE, S.


MCCAFFREY, D.





MR-941-ICJDiscovery Management: Further Analysis of theCivil Justice Reform Act Evaluation Data ..... p. 35


MCGUIGAN, K. A.



MCKENNEY, S. D.


MERZ, J. F.

RP-426Trends in Patent Litigation: The Apparent Influ-ence of Strengthened Patents Attributable to theCourt of Appeals for the Federal Circuit ...... p. 91

MOLLER, E.

MR-259-ICJPrivate Dispute Resolution in the BankingIndustry .................................................... p. 31

MR-472-JRHD/ICJEscaping the Courthouse: Private AlternativeDispute Resolution in Los Angeles .............. p. 32

MR-534-ACUS/ICJEvaluating Agency Alternative Dispute ResolutionPrograms: A Users’ Guide to Data Collection andUse............................................................ p. 32

MR-694-ICJTrends in Civil Jury Verdicts Since 1985....... p. 32

MR-888-ICJPunitive Damages in Financial Injury JuryVerdicts ..................................................... p. 34

120 Author Index

January 2005





DRU-1014-ICJTrends in Punitive Damages: Preliminary Datafrom Cook County, Illinois, and San Francisco,California.................................................. p. 82

DRU-1059-ICJTrends in Punitive Damages: Preliminary Datafrom California.......................................... p. 82

RP-746Arbitration Agreements in Health Care: Mythsand Reality................................................ p. 96

NELSON, C. E.


R-3071-ICJSimple Justice: How Litigants Fare in the Pitts-burgh Court Arbitration Program ............... p. 50


NEUHAUSER, F. W.



WR-214-ICJData for Adjusting Disability Ratings to ReflectDiminished Future Earnings and Capacity inCompliance with SB 899............................. p. 77

DB-443-ICJEvaluation of California’s Permanent DisabilityRating Schedule: Interim Report.................. p. 79

NEWHOUSE, J. P.


NUCKOLS, T. K.


O’CONNELL, J.

RP-254Consumer Choice in the Auto Insurance Market................................................................. p. 88

RP-442The Costs of Consumer Choice for Auto Insurancein States Without No-Fault Insurance .......... p. 91



ORAV, E. J.


OSHIRO, M.

MR-800-ICJJust, Speedy, and Inexpensive? An Evaluation ofJudicial Case Management Under the Civil JusticeReform Act ................................................ p. 33MR-801-ICJImplementation of the Civil Justice Reform Act inPilot and Comparison Districts.................... p. 33

MR-802-ICJAn Evaluation of Judicial Case ManagementUnder the Civil Justice Reform Act .............. p. 34

Author Index 121

January 2005




PACE, N. M.





MR-888-ICJPunitive Damages in Financial Injury JuryVerdicts .................................................... p. 34


MR-941-ICJDiscovery Management: Further Analysis of theCivil Justice Reform Act Evaluation Data ..... p. 35





MG-234-ICJCapping Non-Economic Awards in MedicalMalpractice Trials: California Jury Verdicts UnderMICRA...................................................... p. 42

R-3391-ICJCosts and Compensation Paid in Tort Litigation................................................................. p. 52

R-3554-ICJAssessing the Effects of Tort Reforms .......... p. 54


R-3885-ICJStatistical Overview of Civil Litigation in theFederal Courts ........................................... p. 57

R-4019-ICJNo-Fault Approaches to Compensating PeopleInjured in Automobile Accidents................. p. 59


P-7243-ICJCosts and Compensation Paid in Tort Litigation:Testimony Before the Joint Economic Committeeof the U.S. Congress.................................... p. 69

IP-184A Flood of Litigation? Predicting the Con-sequences of Changing Legal Remedies Availableto ERISA Beneficiaries ................................ p. 74

DB-220-ICJPreliminary Results of the RAND Study of ClassAction Litigation ........................................ p. 78

RP-426Trends in Patent Litigation: The Apparent Influ-ence of Strengthened Patents Attributable to theCourt of Appeals for the Federal Circuit ...... p. 91

122 Author Index

January 2005


PETERSEN, L.

MR-472-JRHD/ICJEscaping the Courthouse: Private AlternativeDispute Resolution in Los Angeles.............. p. 32

PETERSON, M. A.

MR-919-ICJFindings and Recommendations on California’sPermanent Partial Disability System: ExecutiveSummary .................................................. p. 35

MR-920-ICJCompensating Permanent Workplace Injuries:A Study of the California System ................ p. 35

R-2717-ICJModels of Legal Decisionmaking ................ p. 44

R-2881-ICJThe Civil Jury: Trends in Trials and Verdicts, CookCounty, Illinois, 1960–1979 ......................... p. 45

R-2881/1-ICJThe Civil Jury: Trends in Trials and Verdicts, CookCounty, Illinois, 1960–1979. Executive Summary................................................................. p. 46


R-3006-ICJComparative Justice: Civil Jury Verdicts in SanFrancisco and Cook Counties, 1959–1980..... p. 48

R-3011-ICJCompensation of Injuries: Civil Jury Verdicts inCook County............................................. p. 48

R-3013-ICJNew Tools for Reducing Civil LitigationExpenses................................................... p. 48

R-3249-ICJDeep Pockets, Empty Pockets: Who Wins in CookCounty Jury Trials ..................................... p. 51

R-3311-ICJPunitive Damages: Empirical Findings........ p. 52

R-3466-ICJCivil Juries in the 1980s: Trends in Jury Trials andVerdicts in California and Cook County, Illinois................................................................. p. 53R-3511-ICJPosttrial Adjustments to Jury Awards.......... p. 53


N-2342-ICJPunitive Damages: Preliminary EmpiricalFindings .................................................... p. 62

N-2805-ICJResolution of Mass Torts: Toward a Framework forEvaluation of Aggregative Procedures ......... p. 63

P-7073-ICJEvaluating Civil Claims: An Expert SystemsApproach................................................... p. 67

P-7222-ICJA Summary of Research Results: Trends andPatterns in Civil Jury Verdicts. .................... p. 69

RP-108Giving Away Money: Comparative Comments onClaims Resolution Facilities......................... p. 84

RP-116Mass Justice: The Limited and Unlimited Power ofCourts ....................................................... p. 87

RP-311Understanding Mass Personal Injury Litigation: ASocio-Legal Analysis................................... p. 89

PETRILA, J.

MR-1340-CSCRThe Effectiveness of Involuntary OutpatientTreatment: Empirical Evidence and the Experienceof Eight States ............................................ p. 38

PHELPS, C. E.


Author Index 123

January 2005

PICUS, L. O.

R-3421-ICJCosts and Compensation Paid in AviationAccident Litigation .................................... p. 53

R-3479-ICJThe Debate over Jury Performance: Observationsfrom a Recent Asbestos Case ...................... p. 53


N-2773-ICJAviation Accident Litigation Survey: Data Collec-tion Forms................................................. p. 63

POLICH, S.

MR-1268-ICJPermanent Disability at Private, Self-InsuredFirms: A Study of Earnings Loss, Replacement,and Return to Work for Workers’ CompensationClaimants.................................................. p. 38



POLIN, S. S.

R-3050-ICJAutomobile Accident Compensation: Vol. 1, WhoPays How Much How Soon? ...................... p. 49

R-3053-ICJAutomobile Accident Compensation: Vol. 4, StateRules ........................................................ p. 50

PRIEST, G. L.

R-2881-ICJThe Civil Jury: Trends in Trials and Verdicts, CookCounty, Illinois, 1960–1979 ......................... p. 45

R-2881/1-ICJThe Civil Jury: Trends in Trials and Verdicts, CookCounty, Illinois, 1960–1979. Executive Summary................................................................. p. 46

R-3032-ICJThe Selection of Disputes for Litigation ....... p. 49

R-3084-ICJRegulating the Content and Volume of Litigation:An Economic Analysis................................ p. 50

REDDY, M.

MR-528-ICJCalifornia Lawyers View the Future: A Report tothe Commission on the Future of the LegalProfession and the State Bar ........................ p. 32

RESNIK, J.

R-3002-ICJManagerial Judges...................................... p. 47


RP-110From “Cases” to “Litigation” ...................... p. 85

RP-364Whose Judgment? Vacating Judgments, Prefer-ences for Settlement, and the Role of Adjudicationat the Close of the Twentieth Century .......... p. 90

RP-439Many Doors? Closing Doors? Alternative DisputeResolution and Adjudication....................... p. 91


P-7272-ICJFailing Faith: Adjudicatory Procedure in Decline................................................................. p. 69

P-7418-ICJDue Process: A Public Dimension................ p. 70

P-7419-ICJJudging Consent......................................... p. 70

REST, G. J.

R-3071-ICJSimple Justice: How Litigants Fare in the Pitts-burgh Court Arbitration Program................ p. 50

N-1965-ICJCourt-Administered Arbitration: An Alternativefor Consumer Dispute Resolution................ p. 61

124 Author Index

January 2005

REUTER, P. H.

R-3022-ICJDesigning Safer Products: Corporate Responses toProduct Liability Law and Regulation......... p. 48

N-2807-ICJThe Economic Consequences of Expanded Corpo-rate Liability: An Exploratory Study............ p. 63

P-7089-ICJDesigning Safer Products: Corporate Responses toProduct Liability Law and Regulation......... p. 67

REVILLE, R. T.


MR-920-ICJCompensating Permanent Workplace Injuries: AStudy of the California System.................... p. 35





MR-1457-ICJTrends in Earnings Loss from DisablingWorkplace Injuries in California: The Role ofEconomic Conditions .................................. p. 40


WR-205-ICJHow Does Health Insurance Affect Workers’Compensation Filing? ................................. p. 76

WR-214-ICJData for Adjusting Disability Ratings to ReflectDiminished Future Earnings and Capacity inCompliance with SB 899.............................. p. 76

DB-443-ICJEvaluation of California’s Permanent DisabilityRating Schedule: Interim Report.................. p. 79

RP-921The Impact of a Disabling Workplace Injury onEarnings and Labor Force Participation .......p. 100

RP-939Permanent Partial Disability from OccupationalInjuries: Earnings Losses and Replacement inThree States ...............................................p. 100


RIDGELY, S.

MR-1340-CSCRThe Effectiveness of Involuntary OutpatientTreatment: Empirical Evidence and the Experienceof Eight States ............................................ p. 38

ROBYN, A.

R-2888-ICJCosts of the Civil Justice System: Court Expendi-tures for Processing Tort Cases.................... p. 46

ROGOWSKI, J. R.




ROLPH, E. S.

MR-259-ICJPrivate Dispute Resolution in the BankingIndustry..................................................... p. 31

Author Index 125

January 2005

MR-472-JRHD/ICJEscaping the Courthouse: Private AlternativeDispute Resolution in Los Angeles.............. p. 32

MR-534-ACUS/ICJEvaluating Agency ADR Programs: A Users’Guide to Data Collection and Use ............... p. 32


R-2733/1-ICJJudicial Arbitration in California: The First Year:Executive Summary ................................... p. 44

R-3167-ICJIntroducing Court-Annexed Arbitration: A Policy-maker’s Guide........................................... p. 51

N-2186-ICJCourt-Ordered Arbitration: The CaliforniaExperience ................................................ p. 61

N-3524-ICJHealth Care Delivery and Tort: Systems on a Col-lision Course? Conference Proceedings, Dallas,June 1991................................................... p. 66

RP-115Framing the Compensation Inquiry ............ p. 86

RP-746Arbitration Agreements in Health Care: Mythsand Reality................................................ p. 94

ROLPH, J. E.

R-3050-ICJAutomobile Accident Compensation: Vol. 1, WhoPays How Much How Soon? ...................... p. 49

R-3053-ICJAutomobile Accident Compensation: Vol. 4, StateRules ........................................................ p. 50

N-1725-HHSSome Statistical Evidence on Merit Rating inMedical Malpractice Insurance ................... p. 61

N-2418-ICJLimiting Liability for Automobile Accidents: AreNo-Fault Tort Thresholds Effective?............ p. 62

N-3426-MT/RWJ/RCMerit Rating for Physicians’ Malpractice Premi-ums: Only a Modest Deterrent..................... p. 64



P-7812The Bad Apples? Malpractice Claims Experienceof Physicians with a Surplus Lines Insurer................................................................. p. 72

RP-746Arbitration Agreements in Health Care: Mythsand Reality ................................................ p. 94

ROSS, R. L.

R-2985-ICJCosts of the Civil Justice System: Court Expendi-tures for Various Types of Civil Cases.......... p. 47

ROWE, T. D., JR.

RP-951-ICJBeyond “It Just Ain’t Worth It”: Alternative Strate-gies for Damage Class Action Reform ..........p. 100

SAGER WEINSTEIN, L. R.


SAGE, W. M.

RP-860Expanded Managed Care Liability: What Impacton Employer Coverage? ............................. p. 97

SARAT, A.

P-7180-ICJThe Impact of Fee Arrangement on LawyerEffort......................................................... p. 68

126 Author Index

January 2005

SARMA, S.

R-3311-ICJPunitive Damages: Empirical Findings........ p. 52

SARSFIELD, L. P.



SCHOENI, R. F.

MR-1457-ICJTrends in Earnings Loss from DisablingWorkplace Injuries in California: The Role ofEconomic Conditions ................................. p. 40

SEABURY, S.




WR-205-ICJHow Does Health Insurance Affect Workers’Compensation Filing? ................................ p. 76

WR-214-ICJData for Adjusting Disability Ratings to ReflectDiminished Future Earnings and Capacity inCompliance with SB 899............................. p. 76

DB-443-ICJEvaluation of California’s Permanent DisabilityRating Schedule: Interim Report ................. p. 79

SELVIN, M.

R-2732-ICJCourt Efforts to Reduce Pretrial Delay: A NationalInventory .................................................. p. 44


R-3165-ICJManaging the Unmanageable: A History of CivilDelay in the Los Angeles Superior Court...... p. 51


R-3479-ICJThe Debate over Jury Performance: Observationsfrom a Recent Asbestos Case ....................... p. 53


N-2805-ICJResolution of Mass Torts: Toward a Frameworkfor Evaluation of Aggregative Procedures .... p. 63


RP-116Mass Justice: The Limited and Unlimited Power ofCourts ....................................................... p. 87

SHANLEY, M.

R-3006-ICJComparative Justice: Civil Jury Verdicts in SanFrancisco and Cook Counties, 1959–1980...... p. 48



R-3311-ICJPunitive Damages: Empirical Findings ........ p. 52

R-3511-ICJPosttrial Adjustments to Jury Awards.......... p. 53

SHAW, R.


Author Index 127

January 2005

SHUBERT, G. H.

P-7189-ICJSome Observations on the Need for Tort Reform................................................................. p. 68

P-7241-ICJChanges in the Tort System: Helping Inform thePolicy Debate ............................................ p. 69

SLOSS, E.


SMITH, J. P.

R-3549-ICJComputing Economic Loss in Cases of WrongfulDeath........................................................ p. 54

R-3551-ICJEconomic Loss and Compensation in AviationAccidents .................................................. p. 54

R-3585-ICJDispute Resolution Following Airplane Crashes................................................................. p. 55


STANLEY, W. L.



STERN, R. K.


MR-920-ICJCompensating Permanent Workplace Injuries: AStudy of the California System.................... p. 35

STUDDERT, D. M.

IP-184A Flood of Litigation? Predicting the Con-sequences of Changing Legal Remedies Availableto ERISA Beneficiaries ................................ p. 74

RP-812Direct Contracts, Data Sharing and Employee RiskSelection: New Stakes for Patient Privacy inTomorrow’s Health Insurance Market ......... p. 96

RP-860Expanded Managed Care Liability: What Impacton Employer Coverage?.............................. p. 97

RP-862Legal Issues in the Delivery of AlternativeMedicine.................................................... p. 97


RP-886The Jury Is Still In: Florida’s Birth-Related Neuro-logical Injury Compensation Plan After a Decade................................................................. p. 98


THOMAS, E. J.



TRAYNOR, M.

R-3421-ICJCosts and Compensation Paid in AviationAccident Litigation..................................... p. 53

R-3684-ICJExecutive Summaries of the Aviation AccidentStudy......................................................... p. 56


128 Author Index

January 2005

TRUBEK, D. M.

P-7180-ICJThe Impact of Fee Arrangement on Lawyer Effort................................................................. p. 68

TYLER, T. R.

R-3708-ICJThe Perception of Justice: Tort Litigants’ Views ofTrial, Court-Annexed Arbitration, and JudicialSettlement Conferences .............................. p. 56

RP-117Alternative Dispute Resolution in Trial andAppellate Courts ....................................... p. 87

VAIANA, M. E.

MR-695/1-ICJCalifornia’s Ozone-Reduction Strategy for Light-Duty Vehicles: An Economic Assessment .... p. 33







R-3583-ICJTrends in Tort Litigation: The Story Behind theStatistics.................................................... p. 54




DB-139-ICJThe Costs of Excess Medical Claims for Auto-mobile Personal Injuries.............................. p. 78

DRU-1264-ICJLiability System Incentives to Consume ExcessMedical Care.............................................. p. 82

DRU-1266-1-ICJMaking ZEV Policy Despite Uncertainty: AnAnnotated Briefing for the California AirResources Board......................................... p. 83


VICTOR, R. B.


R-2979-ICJWorkers’ Compensation and Workplace Safety:The Nature of Employer Financial Incentives................................................................. p. 47

WALLACE, P.


WATERMAN, D. A.

R-2717-ICJModels of Legal Decisionmaking................. p. 44

P-7073-ICJEvaluating Civil Claims: An Expert SystemsApproach .................................................. p. 67

WHITE, M.

DB-362.0-ICJAsbestos Litigation in the U.S.: A New Look at anOld Issue ................................................... p. 78

Author Index 129

January 2005


WILLIAMS, A. P. , JR.

P-7445Malpractice, Outcomes, and Appropriateness ofCare.......................................................... p. 70

WILLIAMS, E. J.


WILSON-ADLER, J.

R-2732-ICJCourt Efforts to Reduce Pretrial Delay: A NationalInventory .................................................. p. 44

R-2732/1-ICJCourt Efforts to Reduce Pretrial Delay: A NationalInventory. Executive Summary................... p. 44

WICKIZER, T.

WR-203-ICJEvaluating Medical Treatment Guideline Sets forInjured Workers in California .................... p. 76

WYNN, B.O.

MR-1776-ICJAdopting Medicare Fee Schedules: Considerationfor the California Workers' CompensationProgram.................................................... p. 40


CT-202-ICJInflation in Hospital Charges: Implications forthe California Workers’ Compensation Program................................................................. p. 81

WICKIZER, T.


YEE-WEI LIM


YEOM, J.



YESLEY, M. S.

R-2732-ICJCourt Efforts to Reduce Pretrial Delay: A NationalInventory................................................... p. 44


ZAKARAS, L.


MG-234-ICJCapping Non-Economic Awards in MedicalMalpractice Trials: California Jury Verdicts UnderMICRA...................................................... p. 42

ZANJANI, G.

WR-171-ICJInsurance, Self-Protection and the Economics ofTerrorism................................................... p. 76

ZBAR, B. I.



ZEMANS, F. K.


2 0 0 4


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