This working paper precedes the final version, which is forthcoming in the Research Handbook on Civil Justice, Anne Bloom, David Engel, and Richard Jolly, eds., (Edward Elgar Publishing, 2025)
The rule of law is fragile. Our interest is the long-running rhetoric of the tort reform movement, with its goal of portraying the civil justice system as a dystopia thereby delegitimatizing it and undermining access. Four main considerations guide us. First, the importance of legitimacy in the civil justice context. Second, the source of the dystopian image – it didn’t just emerge out of thin air. Third, that image itself, which animates our concern about legitimacy. Especially important is the representation of plaintiffs’ lawyers — who play a starring role as the villains in a rhetorical story of chaos and decline of a system losing its legitimacy, with dire consequences for society and economy. Finally, is the importance of access and how the reform rhetoric with its dystopian image affects access and even undermines confidence in the rule of law itself.
This is a revised version of a paper prepared for the 2022 Forum for State Appellate Judges, Civil Justice in America: Responsibility to the Public, National Civil Justice Institute, Seattle, WA, July 16, 2022. (Daniels 2022)