Most believe that tort law, at its root, is about dollars and cents. The defendant pays; the plaintiff pockets a specified sum. It is through this financial transfer that tort law’s broader aims—deterrence and compensation—are achieved. Yet, in Information for the Common Good in Mass Torts, recently published as part of the twenty-sixth annual Clifford Symposium, Elizabeth Chamblee Burch and Alexandra D. Lahav complicate that simple story. In the piece, Burch and Lahav argue that, besides damages, tort law very often involves the transfer of something just as valuable if less quantifiable: information.
To see tort litigation as a source of information is to see tort through a different lens. Seen through this lens, in fact, much of what we know—or think we know—about what tort law does or how it works becomes subject to reexamination.
One implication is that, once we center the importance of information disclosure, we see that tort litigation promotes safety, not only (and maybe not primarily) through the much-discussed path of cost internalization (as Richard Posner and Steven Shavell, among others, would suppose), but rather, by triggering disclosures. The idea is that plaintiffs’ lawyers are well-equipped to connect dots, cultivate whistle-blowers, and pry incriminating information out of company vaults. And this information is key. It is vital to helping regulators regulate. It can help ensure that reputations reflect reality so that reputational effects steer consumers to safer, not shoddier, goods. And it can even catalyze cultural shifts: In the face of damning revelations, certain products or activities (such as smoking) may become markedly less cool.
And while this story is facially attractive and easy to tell, Burch and Lahav bring the receipts. They show how, time and again, litigation has brought previously confidential information to light, and the revelation of that information has, in turn, triggered salutary institutional change. Litigation against a fast-food restaurant that served hamburgers contaminated with E. coli ultimately led to new federal standards for cooking meat. (P. 353.) Attorney Lance Cooper’s efforts on behalf of the family of Brooke Melton uncovered a faulty ignition switch in Brooke’s 2005 Chevy Cobalt—and ultimately led to the discovery of a massive cover-up at GM and the recall of some 8.7 million vehicles. (Pp. 354-55.) As Bob Rabin and I have written at length, it was litigation against tobacco companies that pulled back the curtain on the companies’ grave misconduct and ultimately set off waves of regulatory activity. (Pp. 356-58.) And, more recently, public entities’ opioid litigation triggered the disclosure of the ARCOS data—a previously confidential government database that mapped where every prescription painkiller originated and where it was sold. This disclosure has made it possible for journalists, researchers, health experts, and the public to measure and map the precise roots and contours of the opioid epidemic—and also to identify, with precision, which manufacturers and distributors shipped the most pills to the hardest-hit communities. (Pp. 364-66.)
And yet, Burch and Lahav observe: Not every litigation that unearths a public health hazard generates a public disclosure. Sometimes there’s a kink in the above process. In fact, precisely because information is valuable, it may stay under wraps, as the defendant may choose to pay extra in order to keep the plaintiff’s lips sealed. Thus, the authors call information unearthed in litigation a “common good.” By that they mean that the information is “useful to society—the commons” and also that it is “a good that can be commodified and sold for a secrecy premium.” (P. 349.) The bottom line is that, even in the face of urgent public health hazards, the choice of secrecy or publicity is very often in private parties’ hands.
The recent Sandy Hook settlement offers a vivid illustration. On February 15, 2022, the families of nine individuals killed at Sandy Hook Elementary School announced that they had resolved their long-running lawsuit against Remington, the maker of the AR-15-style weapon that gunman Adam Lanza had used in the 2012 massacre. As part of the settlement, Remington’s insurers are poised to pay $73 million, an unusually large sum. The settlement agreement is also unusual for another reason. The agreement compels Remington to release thousands of pages of internal company documents, including its plans for how to market the weapon. The families’ lawyer has explained that the families could have settled more quickly and with less difficulty had they not held out for the disclosure of that material. But, united in the desire “to do whatever they could to help prevent the next Sandy Hook,” the families insisted on sunlight.
But, what to do when plaintiffs lack the Sandy Hook families’ fortitude? That question has swirled for decades.1 And, as Burch and Lahav recognize, it defies easy resolution.
After all, though the case for disclosure is powerful, there are also countervailing considerations. For starters, there’s the matter of litigant privacy and autonomy: Plaintiffs, already victimized, should arguably be free to call their own shots, and defendants should not forfeit all rights to privacy simply by virtue of becoming embroiled in litigation. Furthermore, transparency requirements could possibly create a drag on judicial efficiency and may well be susceptible to circumvention. And even if we believe, generally, in disclosure, operationalizing that default is tricky. Should all (or nearly all) information unearthed during discovery be publicized?
But, even while recognizing the question’s root difficulty, Burch and Lahav take three meaningful steps to advance the current debate.
First, they offer a fresh analysis of the age-old question: “What are courts for?” In particular, they add, to the traditional mix of law declaration and private dispute resolution, a third purpose for courts: truth revelation.
Second, Burch and Lahav consider, and mostly reject, the notion that, in order to promote transparency, we have to come up with one tidy solution. They convincingly argue that our commitment to disclosure needn’t be one-size-fits-all. And, just as importantly, transparency and secrecy needn’t be binary. Instead, judges can analyze disclosure on a spectrum and can “tailor confidentiality orders to the public interest at issue.” (P. 394.)
Third, Burch and Lahav highlight a provocative link between transparency and trials. Trials are undeniably public. Thus, as long as trials are a regular part of the American system of civil justice, the tort system’s information-forcing function is apt to operate well, even without significant judicial intervention. But, on the other hand, if trials are rare or exceptional, more judicial intervention may be necessary in order for tort law’s information-forcing function to operate properly.
Mapped onto the real world, this last insight counsels for more sustained attention to the promotion of transparency in litigation. After all, civil trials have all but vanished. For the twelve-month period ending in September 30, 2019, in the federal system, there were a total of 2,228 jury or non-jury trials out of a total of 311,520 cases terminated: a trial rate of 0.7%.2 Given that the American civil trial is all but an artifact, courts’ affirmative obligation “to promote public discourse and truth revelation, safeguard public health and safety, explain and give life to public values, and clarify and define the law through transparent reasoning—traditional features of public adjudication—increases.” (Pp. 392-93.) In other words, for tort law to serve its information-forcing role in a world without trials, more judicial attention (including more searching judicial scrutiny of protective orders and less tolerance for the submission of material under seal) may well be warranted.
- Confronting the question, some have worked to promote litigation transparency by enacting legislation, at the state or federal level. Some such bills have been enacted. E.g., Zoe Schiffer & Sean Hollister, California Just Made It a Lot Harder for Companies to Cover Up Harassment and Abuse, The Verge, Oct. 7, 2021 (describing California’s recent legislative efforts to ban certain secret settlements: the STAND Act and the Silenced No More Act). Other bills have not (yet) made it into law. E.g., S.B. 1149 (2022) (proposing California’s “Public Right to Know Act of 2022”); H.R. 1053, 115th Cong. (2017) (proposing the federal “Sunshine in Litigation Act of 2017”). Some have tried to promote transparency by altering procedural rules. See, e.g., S.C. Local Civil Rules for the U.S. District Court R. 5.03(E) (specifying that “[n]o settlement agreement filed with the court shall be sealed pursuant to the terms of this rule”); Tex. Rules of Civ. Pro. 76a (creating a strong presumption of public access). And, some have sought to address the problem via modifications to the Model Rules of Professional Conduct. E.g., Richard A. Zitrin, The Case Against Secret Settlements (Or, What you Don’t Know Can Hurt You), 2 J. Inst. for Study Legal Ethics 115, 116 (1999) (proposing an amendment to Model Rule 3.2).
- Calendar year 2020 data is also available, although that data is skewed given the pandemic’s effect on court processes. Note that this data is drawn from Table C-4, maintained by the Administrative Office of the U.S. Courts. That Table defines a trial as “a contested proceeding at which evidence is introduced” and therefore counts as “trials” certain events which we might not believe truly qualify (e.g., a contested hearing to determine whether to issue a restraining order). See Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459, 461 (2004).