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The overall cost of litigation in the United States has now reached the vertiginous level of 2 percent of the nation’s gross domestic product, around $300 billion. That is more than the legal bills of all other nations combined. An intellectual revolution that began in the 1940s and 1950s has bequeathed to us our present-day legal system—hyperactive, expansionist, and ruinously expensive. It transformed courts into arenas for social change, and then filtered down to the more homely precincts in which civil actions are argued. Previously obscure disciplines in the realm of civil litigation (tort law, environmental law, occupational-safety law) became the means whereby judges and juries were urged successfully by crusading lawyers to use their power over the pocketbooks of governments, corporations, and well-insured med-ical professionals to “teach a lesson” to those who had supposedly made less powerful and less protected people suffer. As a result, there is no longer a meaningful disincentive to sue. The growth of contingent-fee representation (in which lawyers do not take money up front but rather a large cut of the financial settlement) and the absence of a “loser pays” rule (which requires a plaintiff whose suit is considered without merit to bear the costs of all litigation on both sides) have seen to that. At the same time, lucrative awards granted by juries in the form of punitive damages have made litigation a quasi-entrepreneurial business for ambitious lawyers.

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